Right of First Refusal Clause

Something that we hear often between parents is that when the other parent is supposed to be watching the minor child(ren) they are not; the child(ren) is with relatives, neighbors or in some kind of child care.  When drafting an Allocation Judgment, I always inform my clients that they should include a right of first refusal clause.  I have listed the statue that guides this provision below but essentially what this provision does is require the parent whom the child(ren) is supposed to be in the care of to offer parenting time to the other parent if the minor child(ren) is to be placed in some alternative care other than the parent for a significant period of time.  It is important that a “significant period of time” is clear as to what amount of time that is and possibly what alternative care means.  As the child(ren) may have a set time that they are in pre-school or some other developmental program that should not be accounted for in this section.


This clause can be beneficial as it allows both parents to have the maximum time with the child(ren) as possible.

    (750 ILCS 5/602.3)
Sec. 602.3. Care of minor children; right of first refusal.
(a) If the court awards parenting time to both parents under Section 602.7 or 602.8, the court may consider, consistent with the best interests of the child as defined in Section 602.7, whether to award to one or both of the parties the right of first refusal to provide child care for the minor child or children during the other parent’s normal parenting time, unless the need for child care is attributable to an emergency.
(b) As used in this Section, “right of first refusal” means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children. The parties may agree to a right of first refusal that is consistent with the best interests of the minor child or children. If there is no agreement and the court determines that a right of first refusal is in the best interests of the minor child or children, the court shall consider and make provisions in its order for:
(1) the length and kind of child-care requirements
invoking the right of first refusal;
        (2) notification to the other parent and for his or
her response;
        (3) transportation requirements; and
(4) any other action necessary to protect and promote
the best interest of the minor child or children.
    (c) The right of first refusal may be enforced under Section 607.5 of this Act.
(d) The right of first refusal is terminated upon the termination of the allocation of parental responsibilities or parenting time.
(Source: P.A. 98-462, eff. 1-1-14; 99-90, eff. 1-1-16.)



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