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What is the Right of First Refusal?

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Categorized as Child Custody & Visitation, Illinois Family Law

According to Section 602.3 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602.3), the right of first refusal means that if a party intends to leave the minor child 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 their minor child. The general idea is that it is in a minor child’s best interests to spend time with their parents, as opposed to a babysitter or daycare provider.

If both parents are awarded parenting time with the minor child, then the court may consider whether to award the right of first refusal to one or both of the parents. The court awards the right of first refusal if it is in the child’s best interest, by weighing the factors provided in Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602.7).

Think of Federal Holidays and School Institute days. Although a minor child may not have school on these days the parents may still have to work. If the parent who normally has the child on Mondays does not have the day off from work, but the child does, shouldn’t the other parent be given the opportunity to care for the child before a relative or babysitter, if the other parent is available?

If a Judge decides to award the right of first refusal, the order should have provisions detailing how the right of first refusal is invoked. Remember that we are talking about a “significant” period of time.

It is common to see eight (8) hours as the length of time for invoking the right of first refusal. In those cases, there is likely no problem with a child being with a babysitter while a parent is at work but if the parent also has plans after work, then the other parent should be asked if they are available to care for the child that day, as the child would end up being with a substitute child-care provider for more than eight hours.

Some parties agree to include a provision for right of first refusal in their parenting plans and they may even agree to use a length other than eight hours. Personally, I have seen anywhere between three and twelve hours. Other parties leave the right of first refusal out of their agreements entirely. Remember that in an emergency-type situation, the right of first refusal may not be practical. That is, if something unexpected comes up, the party exercising parenting time may not have enough time to reach out to the other parent to see if they are available. However, a parent cannot use that excuse on a regular basis or it would not be an emergency-type situation.

If you have questions about the right of first refusal, speak to an experienced attorney, as judges consider many factors when determining if this right should be awarded.

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