Parenting Time and the Right of First Refusal

Parenting Time and the Right of First Refusal

By: Gordon & Perlut, LLC

When you have minor children from a marriage or a relationship and you are planning to get divorced or separate from your partner, parental responsibilities will need to be allocated between you and the child’s other parent. Under Illinois law, parental responsibilities used to be known as child custody. Now, rather than awarding legal and physical custody to one or both parents, courts allocate parental responsibilities, which include making significant decisions about the child’s upbringing (like legal custody) and parenting time (like visitation). One issue that can arise when parents share parenting time is something known as the “right of first refusal.” The Illinois Marriage and Dissolution of Marriage Act (IMDMA) specifically addresses the right of first refusal, and we want to tell you more about it.

What is the Right of First Refusal?

Under the IMDMA, the right of first refusal means if a person plans to leave the minor child with a substitute child-care provider for a significant duration, that individual must first offer the other an opportunity to personally care for the child. The IMDMA clarifies the individuals may agree to a right of first refusal, which is consistent with the best interests of the child. However, in some cases, the parents do not agree to a right of first refusal. In such situations, if the court thinks a right of first refusal would be in the best interests of the child, then it can arrange for a right of first refusal. We will explain more about this shortly, but first we want to say more about what this term means and how it relates to parenting time.

When a parent exercises parenting time, or when a parent is scheduled to have time with his/her child or children, the IMDMA makes clear that parenting time requires the parent to provide caretaking functions for the child. Caretaking functions involve a wide range of duties, from making sure the child has meals, has an appropriate bedtime and wake-up time, the child gets to school on time, the child completes his/her homework and many other duties that come with the day-to-day process of raising a child. Accordingly, when a parent plans to hire someone to provide caretaking functions while that parent has parenting time, the right of first refusal could allow the other parent to take the child during that time.

When a Court Makes Provisions for a Right of First Refusal

If a court thinks a right of first refusal would be in the child’s best interests, the IMDMA says the court will then consider and make provisions for the following:

  • Length and type of child-care requirements, which would invoke the right of first refusal;
  • Notification to the other parent; and
  • Transportation for the child.

Some examples of situations in which the right of first refusal might apply include, but are not limited to:

    • Parent is scheduled to work;
    • Parent has a business trip;
    • Parent needs to be out-of-town for personal reasons; or
    • Parent has plans to hire a babysitter for the night.

    Contact a Chicago Parenting Time Lawyer

    The right of first refusal does not apply to all child custody cases or parenting time situations. For it to apply, the parents either need to agree to it or the court must order it. If you have questions about the right of first refusal, a parenting time lawyer in Chicago can assist you. Contact Gordon & Perlut, LLC for more information.