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Kane County child custody lawyerWhile parenting after a divorce or a breakup of unmarried parents will nearly always be challenging, your child will benefit from determined cooperation between you and your former partner. Parents have long been permitted to develop their own agreements regarding child custody—as long as they promoted the best interests of the child—however, the law in Illinois was recently amended regarding child custody and parenting concerns. Today, divorced or unmarried parents are not only allowed to create a parenting plan, but they are fully expected by the court to do so. One element that must be considered in drafting a parenting plan is each parent’s right of first refusal and whether such rights are appropriate for a particular situation.

Extra Parenting Time

At some point, all parents will need someone to watch their children. This, as you might expect, may be frustrating at times for a parent whose time with his or her child is already limited due to a divorce. On the other hand, a parent in that situation may also be looking for additional ways to participate in the child’s life. Including the right of first refusal in your parenting plan could directly address both concerns.

You and your child’s other parent may agree that if either of you ever needs someone to watch your child during your respective scheduled parenting time, you will first contact each other to offer the opportunity. For example, if your parenting time is scheduled for a certain weekend, but you are required to leave town for work, your agreement could require you to ask the other parent if he or she would like extra time with your child before finding someone else to watch your child.

Variables Involved in Parent's Right of First RefusalA parenting plan sets the schedule for when children stay with parents who live apart, but Illinois courts generally presume that separated parents should be able to expand their parenting time when circumstances allow it. That is why some parenting plans include a right of first refusal for each parent. Special circumstances sometimes prevent a parent from being able to watch the children during his or her scheduled parenting time. The right of first refusal requires the unavailable parent to offer the other parent a chance to watch the children before asking a third party. Separating parents may agree to this provision because they know that the children are best off being with one of them. However, there are several variables to a right of first refusal provision that can cause disagreements.


It may be impractical for a parent to be required to contact his or her co-parent every time he or she needs childcare. The co-parents must also decide how the transfer of the children would work. A right of first refusal provision includes conditions that clarify when and how the provision is used. This may include:

Kane County family law attorneyWhen you are a divorced parent, it can be very difficult to find the time to do things that interest you. Between your obligations for work and caring for your children, it may seem impossible to pursue hobbies or spend time with friends. Your own health, however, depends on you being able to develop an identity as an individual with interests outside of your children. One of the biggest challenges that divorced parents often face is finding a babysitter or someone to care for their children when such care is needed. If you need child care arrangements, your parenting plan may dictate that your first call must be to the child’s other parent.

The 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. The right of first refusal refers to an arrangement in which a parent requiring child care must first offer the other parent the opportunity for additional parenting time before seeking alternate arrangements. While this may sound complicated, the right of first refusal is often fairly straightforward in practice.

Posted on in Divorce
The start of every new year often involves the implementation of new laws that can affect your rights during divorce. For example, this year the “Right of First Refusal”  was codified into state law. It will take effect in 2014 may affect your rights as a parent involved in a custody dispute.

right of first refusal IMAGEThe Law

The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5, was amended within the past year to include the Right of First Refusal in section 602.3. Basically, this amendment was introduced to allow the court, if it finds that it is in the best interest of the child, and the court awards joint custody or visitation rights, to find that both parties will have the right of first refusal to care for the minor children if during the party's normal parenting time an extended absence is necessary.

The synopsis of the Bill, as introduced, suggests that an absence of four hours constitutes the minimum time of absence under which the right of first refusal should be exercised by the custodial parent. The amendment itself, however, does not set a minimum time of absence but rather, it states only that an absence for a “significant” amount of time will invoke the right of first refusal.

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