Variables Involved in Parent's Right of First Refusal

 Posted on March 11, 2018 in Child Custody

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:

  • A minimum number of hours that childcare is needed before the right of first refusal is required;
  • Different requirements based on whether the parent is unavailable for professional or personal reasons;
  • How the parents are expected to contact each other when offering the right of first refusal;
  • How much prior notice is required;
  • How long a co-parent has to respond; and
  • The transportation responsibilities of each parent.

If the parents are unable to agree on these conditions, a court will make decisions based on the best interest of the children.

Recent Case

With the case of In re Marriage of Whitehead, a divorced father argued that an Illinois trial court erred when creating the conditions for the right of first refusal. According to their divorce agreement, a parent must need childcare for a minimum of eight hours before being required to offer the right of first refusal. The father asked for the minimum to be reduced to four hours because eight hours gives the mother too much flexibility to avoid the right of first refusal requirement. The trial court rejected his request, and an appellate court found no reason to believe the trial court erred in its decision. The appellate court stated that eight hours is a reasonable amount of time. In contrast, four hours would require increased communication, and possibly conflict, between the parents.

Parenting Rights

Separated parents do not need a right of first refusal provision to ask each other for help with childcare. The provision can prevent co-parents from avoiding each other as childcare options when unable to watch their children. A Kane County family law attorney at Goostree Law Group can discuss whether you should add the right of first refusal to your parenting agreement. To schedule a free consultation, call 630-584-4800.



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