The Right of First Refusal
In Illinois, before agreeing to a custody arrangement, divorcing couples are required to consider including a right of first refusal provision in their parenting plans. This means that before a parenting plan can be approved, parents must consider including a guarantee that anytime the custodial parent needs someone to care for the children, he or she must ask the other parent first before engaging the services of a babysitter or other family member.
According to Illinois law, if a Family Court awards parenting time to both parents, it must consider whether one or both parties should be awarded the right of first refusal, which would give the non-custodial parent the first opportunity to care for the child if the custodial parent intends to leave for a significant period of time.
Parents are encouraged to come to an agreement regarding first refusal rights without the aid of the Court. However, in instances where this is not possible, or if the court finds that the agreement is inconsistent with the best interests of the child, the judge must consider adding the right to the terms of the parenting plan.
In its consideration of whether to include the right of first refusal in the custody agreement, the Court is required to consider a variety of factors, including:
- The length and type of child care requirements necessary to invoke the right of first refusal;
- How much notification the custodial parent must give to the other parent;
- The amount of time by which the other parent must respond;
- Transportation requirements; and
- Any other consideration the court deems necessary to protect the best interests of the child.
The Court may also take into consideration the distance between the parents’ homes, as well as any other time restrictions or employment constraints. Additionally, the Court will evaluate whether the relationship between the parties is amicable enough to make the cooperation that is necessary for the right of first refusal feasible.
The right of first refusal only applies to parents who are awarded joint parenting time. As a result, the right does not apply to parents who have had their rights terminated, although it is otherwise enforceable. If included in the parenting plan, the right of first refusal can only be terminated by parental consent or court order.
The right of first refusal can increase a child’s chances of maintaining meaningful relationships with both parents and usually ensures greater child support compliance. If you are considering a divorce, an experienced attorney can help you draft a parenting plan that includes a right of first refusal provision that is appropriate for all parties. Please contact skilled Palatine family law attorney Nicholas W. Richardson to schedule a free consultation.