Child custody and visitation laws are continuously under scrutiny in the state of Illinois in order to ensure that the best interests of children of divorced parents are being effectively protected. It has been determined that maximum time with each parent is essential for the emotional, physical and mental well being of children whose parents are divorced. In order to maximize the opportunity for parenting time, Illinois State Legislature implemented the Right of First Refusal, which is an amendment to the Illinois Marriage and Dissolution of Marriage Act and is designed to provide parents who have joint custody the opportunity to care for their children in the event that the other parent requires child care during his or her parenting time.

(Article continues below Infographic)

Before the Right of First Refusal was implemented, parents who were in need of child care for significant periods of time during their normal parenting time could hire a third party such as a babysitter, family member or friend to provide such care. Under the new amendment, however, the parent is required to give the other parent the option of caring for the children before hiring a third party.

When Does the Right of First Refusal Apply?

Right of First Refusal can apply in a variety of scenarios when third party child care would typically be required. Under the Right of First Refusal, parents are obligated to notify the other parent of child care needs and allow them the first opportunity to provide care during:

Periods when the custodial parent is regularly scheduled to work

Business trips

Significant time periods when the custodial parent must be away to take care of family matters, personal matters or other matters

Any period when the parent needs to be absent and would normally hire third party child care

Right of First Refusal does not apply in emergency situations.

Right of First Refusal is Not Automatic

Unfortunately when parents divorce, their children are often the ones who suffer, and Illinois family attorneys see this much too often. When parents are unable to put their differences aside and maximize opportunities for both parents to spend time with their children, the best interests of the children are not being met. While the Right of First Refusal is designed to help ensure that parents share parenting time, it is important to remember that the law only allows for the option of incorporating Right of First Refusal in the parenting plan- the right is not automatic. In order for Right of First Refusal to be enforced, it must first be either agreed upon by both parents or ordered by the court. Additionally, the court may grant the right to either one or both parents at its discretion.

There are a few things that the court will consider when ordering Right of First Refusal, including:

The definition of a significant period of time as interpreted by the parties and the court

The type of child care that would invoke the right

Transportation factors (who will provide transportation when the right is invoked)

The notification and response process between the parents

How the right would impact the best interests of the children

These factors enable the Right of First Refusal to be customized in order to best suit the needs of the family. For example, in one case the court may decide that any child care expected to last more than four hours should invoke the right, while in another family’s situation the parties might decide that only overnight care should put the right into effect. Illinois residents who are dealing with child custody matters may benefit from speaking with an Illinois family attorney to determine whether the Right of First Refusal should be incorporated into their parenting plans.

When Can the Right of First Refusal Be Granted?

The Right of First Refusal can be awarded during an initial parenting agreement or divorce decree when joint custody or visitation is ordered. It can also be incorporated when modification of a previous child custody order is performed. While many divorcing parents may initially choose to avoid the complex layer that the Right of First Refusal might add to their child custody case, over time they may decide that a court order is necessary to ensure that one or both parents receive maximum opportunities for parenting time.

What Happens When the Other Parent Does Not Comply with the Right of First Refusal?

The Right of First Refusal is legally enforceable. When a parent does not comply with the Right of First Refusal, the other parent may wish to contact an attorney who is experienced in family law and child custody cases in order to take the non-compliant parent back to court.