What Is a Parent’s “Right of First Refusal” in Illinois?

For couples with children who are going through a divorce, one of the most important aspects of the process is ensuring that their child's best interests are met. The courts require that divorcing parents try to work together to create a parenting plan that will determine each parent’s level of authority in making decisions about raising the child, define schedules for the parenting time the child will spend with each parent, and address other relevant issues. If the parents cannot come to an agreement on these issues, these decisions will be made by the judge in their divorce case. The “right of first refusal” is one issue that may need to be addressed in a parenting plan.

What Is the “Right of First Refusal”?

When a parenting plan is approved by the court, it is expected that each parent will follow the court-ordered parenting time schedule. However, situations may arise in which a parent will not be available during their scheduled parenting time, and they may need to utilize a third-party caregiver, such as a daycare, grandparents, or babysitters for a significant period of time. In these situations, the other parent may want to have the option to care for the children. 

If a parenting plan includes the “right of first refusal”, it will state that if one parent ever plans on leaving a minor child with a third-party caretaker for a significant timeframe, that parent must first offer the other parent the opportunity to care for the child during that timeframe instead. Depending on the situation, parents may agree that the “right of first refusal” would be in the child's best interest, but if they cannot agree on how this right will arise, then the judge may decide whether to include this right in the parenting agreement, as well as terms specifying how it will be used.

When addressing the “right of first refusal,” a parenting plan should define the circumstances in which it may be invoked. For example, an agreement may state that if one parent will be unavailable for at least four hours during his or her scheduled parenting time, he or she must offer the other parent the opportunity to care for the child. A “right of first refusal” provision should also address issues such as:

• How a parent will be notified if the other parent will be unavailable;
• Transportation arrangements for children; and,
• Any additional requirements that may be in the children's best interests.

When Is a “Right of First Refusal” Provision Appropriate?

For parents who have hectic schedules due to work, school, or medical issues, the “right of first refusal” could be a win-win scenario. If changes to one parent’s schedule may result in his or her unavailability during his or her scheduled parenting time, the ability to have the children stay with the other parent can help reduce expenses for child care or babysitters. If the ex-spouses are able to be flexible and work together to ensure that their children’s needs are being met, “right of first refusal” can be a good solution that allows both parents to be closely involved in their children’s lives.

Contact a Hillside Family Law Attorney