Right of First Refusal in Illinois

 Posted on May 28, 2015 in Child Custody and Support

After a divorce or other situation leading to the creation of a child custody order, most parents are granted certain amounts of time with their child or children. This time may be rather significant, as would be the case for a parent who was awarded sole custody of a child, or it may be relatively limited, as would be the case for a parent with visitation for a few days each month. For many other parents, their time with the child often falls somewhere in between. Challenges may arise, however, when, for whatever reason, a single or divorced parent needs to find alternative care for the child during his or her arranged parenting time. In such situations, the Illinois law regarding the “right of first refusal” may be invoked.

Child Custody and Right of First Refusal

Under the Illinois Marriage and Dissolution of Marriage Act, any child custody arrangement involving joint custody or rights of visitation may also include provisions for the right of first refusal. The terms of first refusal rights may be amicably negotiated by the parties or determined and awarded by the court to one or both parents. As with most child-related issues, the best interest of the child is expected to remain the highest priority in making such a determination.

The right of first refusal means that, when it is applicable, if one parent needs to leave their child with another caregiver “for a significant period of time,”he or she must offer the other parent the opportunity to care for the child prior to making other arrangements. In effect, it gives the child’s other parent time with the child that he or she may not have had otherwise, while providing for the best interest of the child. Exceptions to the right of first refusal would include emergency situations in which communicating and making arrangements with the other parent is not possible.

Specific Provisions

In creating an agreement regarding the right of first refusal, the parties or the court must establish certain details as to how it will be applied. These provisions statutorily include:

• The length and kind of child-care requirements that will cause the right of first refusal to be invoked;
• Notification and communication requirements between the parents;
• Transportation arrangements; and
• Any other requirements to protect the well-being of the child.

These provisions allow the parents or the court to customize their rights of first refusal as appropriate to their situation. Some arrangements may establish, for example, that any overnight child-care need must be offered to the other parent, while others may not invoke the right of first refusal unless the need would be for longer than two days. As long as parents continue to act in the best interest of their children, the court is unlikely to interfere.

If you are involved in a child custody matter and would like the right of first refusal incorporated into your agreement, contact an experienced family law attorney in Geneva. We will help you understand your options, how the law may apply to your case, and work with you in achieving the best possible outcome for your family.