Child Custody and the Right of First Refusal

Divorced and unmarried parents often struggle with the amount of time they are able to spend with their children. Even in joint custody situations, it can sometimes be difficult to feel like you see and interact with your child enough. When the opportunity arises for unexpected, extra parenting time, many parents, especially those who are not the primary residential parent, will welcome the chance. This idea is reflected in the Illinois “right of first refusal” law for parents with joint custody or visitation rights.

Right of First Refusal as an Option

Passed in 2013, and put into effect in 2014, the right of first refusal was added as an amendment to the Illinois Marriage and Dissolution of Marriage Act. The amendment gave a court the power to award to either or both parents the right of first refusal of the opportunity to care for the child. Either parent may request the granting of such rights or the court may act on its own discretion.

The right of first refusal, as defined in the law, means that if a parent requires alternative child care “for a significant period of time,” the opportunity to care for the child must be first offered to the other parent before making arrangements with another care provider. Typically, this represents additional time with the child for the other parent, over and above what may have been set forth in a custody or visitation order. For example, if a child’s primary residence is with his mother, and the mother is required to go on business trip for three days during her normally-scheduled parenting time, an awarded right of first refusal means that she must offer the child’s father the opportunity to care for the child during her trip

Considerations for Right of First Refusal

When the law was first being considered in 2013, the initial criteria for offering first refusal was any situation requiring four or more hours of alternative child care. The measure was amended to a more nebulous “significant period of time,” with the idea that each affected family can set its own standard, within reason, for the application of the law.

In setting the terms of the agreement, the parents and the court must decide:

  • The length of time and the type of child-care needs that will require offering first refusal to the other parent;
  • How the parents will notify each other, and guidelines for responses, including appropriate time frames;
  • Arrangements for transportation; and
  • Any other details necessary for the proper application of the right of first refusal and the child’s best interest.

If you have questions regarding the right of first refusal or any other child custody concerns, contact an experienced family law attorney in Orland Park. We are proud to serve families throughout the area with the child-related matters and look forward to helping you. Call 708-518-8200 to schedule a free consultation today.