What is the Right of First Refusal in an Illinois Parenting Plan?

 Posted on June 15, 2026 in Child Custody

Every couple going through a divorce with children must make child custody arrangements before they can complete the process. These arrangements are written in a legally binding parenting plan.

Every parenting plan contains information about how parents will split parenting time (visitation) and share decision-making responsibilities (legal custody). Parenting time is often a tough issue for parents during a divorce. Many parents do not want to give up spending time with their children any more than they absolutely have to because of the divorce.

One way to make sure you see your child as often as possible is by including a clause known as the "right of first refusal" in your parenting plan. Our Inverness, IL divorce attorney has helped countless families work through the options for parenting time and decision-making responsibilities. We can help you, too.

What Exactly Is the Right of First Refusal?

The right of first refusal gives a parent the opportunity to care for his or her child before the other parent turns to an alternative care provider, like a babysitter or a grandparent. For example, if a mother cannot be with the child during her parenting time, she must contact the father to see if he can watch the child before calling a babysitter.

The right of first refusal isn’t guaranteed to be included in every parenting plan; a Judge needs to verify that having it would be in the child's best interests. Parents who get into fights every time they speak to each other are not good candidates for the right of first refusal. Neither are those who live far away from each other.

Under 750 ILCS 5/602.10, the Illinois Marriage and Dissolution of Marriage Act's parenting plan statute, the right of first refusal is one of the mandatory provisions a parenting plan must address. This means you will need to work with your spouse to decide whether you want to include it or not.

Parents are encouraged to come to an agreement about the right of first refusal, but if they are unable to, the Court reserves the right to make the final decision.

What to Include in the Agreement

If you do decide you want to have the right of first refusal in your parenting plan, the statute requires parents to include certain information:

• When the right of first refusal is activated: Clearly state when the right of first refusal is triggered. How long must the absence be before a parent must notify the other parent?
• Which situations do not trigger the right of first refusal: When can the right of first refusal be overlooked? For example, a parent may stipulate that the right is not invoked if the parent is leaving the child with a step-parent during his or her parenting time.
• How you must give notice and reply to the notice: Clearly state terms for how and when both parents are to be notified of the absence, and specify the terms for how the other parent is to send a response.
• Transportation guidelines: Include how transportation arrangements should be made. Who will be responsible for taking the child to the other parent's home?

Although it can be difficult to hammer out these details ahead of time, an unclear right of first refusal clause opens up the door to conflict later on. The more specific you can be, the better.

How Long Does an Absence Need to Be Before the Right of First Refusal Kicks In?

This is one of the most common points of disagreement between parents, making it one of the most important details to nail down clearly. Some parenting plans set a threshold of just a few hours, while others use a whole day or an overnight stay as the trigger. The right answer depends on the specific circumstances of your family, including how close the parents live to each other, the child's age and routine, and the practical realities of each parent's schedule.

A threshold that is too short can make day-to-day life difficult. A parent who cannot run a quick errand or attend a brief appointment without first contacting the other parent may find the provision unworkable. A threshold that is too long, on the other hand, may defeat the purpose of having the clause at all. Illinois Courts do not mandate a specific time threshold. That is left to the parents (or the Judge, if necessary), so it pays to think carefully about what will actually work well over time.

What Happens When a Parent Ignores the Right of First Refusal?

When one parent consistently bypasses the right of first refusal by sending the child to a babysitter or family member without notifying the other parent, that parent may be in violation of the Court-approved parenting plan. Repeated violations can have real consequences.

The other parent can file a petition for rule to show cause, asking the Court to hold the violating parent in contempt. Depending on the Judge's findings, consequences can include makeup parenting time, modification of the parenting plan, or other Court-ordered remedies.

This makes it important to write down each violation, including dates, times, and any conversations you have with your ex, so you can take action if necessary. Illinois Courts treat parenting plan violations seriously, particularly when a pattern of noncompliance affects the child's relationship with the other parent.

Can the Right of First Refusal Be Modified After the Divorce?

Like any other part of your parenting plan, the right of first refusal can be changed if the circumstances justify it. Modification requires either a mutual agreement between the parents formalized in a written modification approved by the Court, or a petition showing that a substantial change in circumstances justifies a revision.

Contact Our Barrington, IL Parenting Plan Lawyer for Help

Decisions concerning your children, such as parenting time, can be sources of major conflict in a divorce. Our Inverness, IL child custody attorney at The Law Office of Nicholas W. Richardson, P.C. can help you negotiate a parenting time agreement that works for both you and your ex, as well as for your child. To schedule a free consultation, call our office today at 847-873-6741.