The Right of First Refusal

When Illinois courts allocate parenting time to a party, the goal is to maximize the time spent with both parents, to the extent it is in the child’s best interest. To meet this goal, courts may grant one or both parties the “right of first refusal”. 750 ILCS 5/602.3(a).

The right of first refusal means that if a parent is unavailable to care for their child during their designated parenting time, they must contact the other parent and offer them the opportunity to take care of the child before seeking a third-party caregiver. 750 ILCS 5/602.3(b). If the other parent is also unavailable or declines the offer, then the parent with parenting time may seek alternative childcare from a family member or another third-party.

Right of first refusal provisions have grown more popular in Allocation Judgments and Parenting Agreements. Specifically, the parties can create a right of first refusal plan that is in the best interests of the child. 750 ILCS 5/602.3(b). This can range based on the child’s circumstances and parental situation. It will also include details like the number of hours a parent must be unavailable before the right of first refusal kicks in.

There is typically a minimum number of hours before this provision is activated. For example, the provision may say a parent must offer the right of first refusal if they are unavailable for five or more hours. Anything below five hours, the parent can utilize a third-party caregiver without offering the time to the other parent first. Anything beyond five hours, the right of first refusal applies, and the parent must first offer the time to the other parent.

If the parties do not create their own plan, then the court can impose one on them. The order will set forth (1) the length and kind of child-care requirements involving the right of first refusal, (2) notification to the other parent, (3) transportation requirements, and (4) any other action necessary to promote the best interest of the child. 750 ILCS 5/602.3(b). A right of first refusal clause can also be terminated if it creates additional and unnecessary conflict between the parties.

The creation of a right of first refusal clause, and the timing of when it is triggered, will be dependent upon how close the parents live, how well they communicate, and the parenting dynamics of the parties. The length of time that is implemented will be dependent on the family and oftentimes on the ages of the child(ren), with shorter right of first refusal periods being more acceptable when there are younger children.

There are various benefits to including the right of first refusal provision. Primarily, it maximizes parental involvement and can foster parent-child or even co-parenting relationships. It also promotes emotional stability for the child and reduces parental reliance on third-party caregivers. An additional benefit is to help ensure that a parent does not hire a third-party babysitter with the intent to prevent the other party from having additional parenting time.

Some disadvantages, however, can be logistical issues, reduced parental autonomy, and potential interferences with daily activities. Especially in high conflict families, it may be difficult for co-parents to communicate effectively to coordinate and plan around an additional parenting time exchange that the right of first refusal creates. This is why longer right of first refusal periods are generally favored so that there are less disruptions to the child(ren)’s schedules and less opportunities for conflict between coparents.

The Law Office of Erin M. Wilson can assist you in creating or altering your parenting agreement to ensure the right of refusal provision is best suited for your family. Our team can help create a right of first refusal plan that works for both parents. Contact The Law Office of Erin M. Wilson at (312) 767-4220 for a consultation regarding creating or altering your parenting plan.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.