What is a Parent's Right of First Refusal?

 Posted on March 08, 2019 in Child Custody

Sharing parenting time is not ideal, but is a necessary part of allowing a child to maintain a significant relationship with both parents after a divorce. Parenting time encompasses a designated period in which a parent is allocated childrearing duties and the authority to make daily decisions for the child’s care. This division of parental responsibilities is typically shared between divorced parents, and the purpose is to foster a continuing connection between the child and each parent because this support is important to the child’s development and well-being.

The expectation is that each parent will be the person who cares for the child during his or her allotted time. Of course, things come up and it is understandable that changes to schedules are necessary, including the use of a babysitter. However, if using third-party childcare during scheduled parenting time becomes a pattern, or is expected to last for an extended period of time, the other parent may be able to exercise a right of first refusal and keep the child instead.

What is the Right of First Refusal?

As noted above, parenting time allows each parent an opportunity to have a relationship with their child, and this requires being the person actually caring for the child on a regular basis. If a substitute caregiver is doing this work, the intent of this arrangement is gone. The right of first refusal gives a parent the ability to opt to keep the child if the other parent will need a third-party caregiver for a significant period of time. This right is not automatic, and a court may award it to one or both parents if it is in the best interests of the child, or the parents may agree to include it in the parenting plan. If it is ordered by the court, a judge will create a structure that addresses the following factors:

The circumstances under which the right of first refusal would apply;

• How and when to provide notification and the subsequent response from the other parent;
• Transportation requirements; and
• Additional actions needed to protect the best interests of the child.

Looking at this rule, it may not seem particularly important in many shared parenting situations. However, what if a parent has a sudden schedule change that switches their shift from days to nights and weekends? Or, what if a parent is called away to care for a family member for months at a time, but still wants to exercise his or her parenting time by allowing a grandparent or other relative to care for the child? These scenarios do not work in the other parent’s favor, so having a mechanism to avoid this situation is crucial. Outside of emergency situations, the right of first refusal typically applies in the following situations:

• When a parent is scheduled to work;
• Business trips;
• Significant time away to address family or personal matters; or
• When a parent would be absent and normally hire childcare.

The right of first refusal provisions can be complicated, so working with an experienced family law attorney is essential to obtaining the desired outcome.

Get Advice from a Wheaton, IL Family Law Attorney

Spending as much time as possible with your child is the goal of any parent, and if you worry an ex-spouse will regularly farm out childcare during their parenting time, talk to a skilled family lawyer about your options. The dedicated DuPage County family law attorneys at the Andrew Cores Family Law Group know the challenges you face with shared parenting and want to help you avoid unnecessary conflict. Contact us today at 630-518-4002 for a free consultation.

http://www.illinoiscourts.gov/Forms/approved/divorce/Divorce_with_Children_Parenting_Plan.pdf

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K602.3