Right of First Refusal

The Illinois Marriage and Dissolution of Marriage Act Provides that a parenting plan may include what is known as “the right of first refusal”, if the parents agree or if ordered by the Court.

If both parents are awarded parenting time with the minor child, then the court may consider whether to award the right of first refusal to one or both of the parents. The right of first refusal refers to an arrangement in which a parent needing child care must first offer the other parent the opportunity for additional parenting time with the child before alternate arrangements are sought.

So, if a parent intends to leave a minor child with a substitute child care provider for a significant period of time, that parent must first offer the other parent an opportunity to personally care for their minor child. The reason is that it is in a minor child’s best interests to spend time with his or her parents, as opposed to a babysitter or day care provider. The Court awards the right of first refusal if it is in the child’s best interest, by weighing the factors provided in Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602.7).

Let’s consider School Institute days, State Holidays, and Federal Holidays when a minor child may not have school on these days and yet, the parents may still have to work. If the parent who normally has the child on Mondays does not have the day off from work, but the child has the day off from school, the question becomes whether the other parent should be given the opportunity to care for the child before a relative or babysitter is given the opportunity, if the other parent is available.

If a Judge decides to award the right of first refusal, the Court Order should have provisions detailing how the right of first refusal is invoked and keeping in mind that we are talking about a “significant” period of time. It is common to see four (4) to eight (8) hours as the length of time for invoking the right of first refusal. However, parents may agree to a lesser or greater time for invoking the right of first refusal.

When granting the right of first refusal, the Court will consider and make provisions that include the following:

  • What length of time and child care requirements must be present in order to invoke the right of first refusal;
  • How the parent will be notified of the right of first refusal and how that parent should make his or her response;
  • Necessary transportation requirements; and
  • Any other action necessary in such situations to preserve the child’s best interests.

If you have questions about the right of first refusal, Susan is an experienced attorney and able to advise you as to how a Judge may consider the many factors provided for in the statute when determining if the right of first refusal should be awarded.