Can Illinois Lawmakers Choose your Babysitter? The Right of First Refusal in Illinois

 Posted on August 19, 2014 in Child Custody

As is seen throughout portions of the Illinois Marriage and Dissolution of Marriage Act, it is a primary goal of Illinois legislature to maximize parent-child bonding time. Throughout the act, the legislature attempted to create laws that incentivize both custodial and non-custodial parents to have a role in their children's life. One of these such provisions is Illinois's "Right of First Refusal" provision.

The Point of the Right of First Refusal

Right of First Refusal was created upon recognition that sometimes during emotional heavy breakups, the interests of the children take a temporary back seat. Though it is desirable for both parents to work together for the well-being of their child, parents do not always meet this standard. Some parents consciously or even unconsciously withhold visitation from the other parent, or try to use time with the child as leverage in divorce proceedings.

The Right of First Refusal aims to circumnavigate strategies for using parent-child bonding time as a leverage point. The right of first refusal applies in cases in which a custodial parent must obtain child care for a child for a significant amount of time. During this time, the custodial parent may be legally required to first ask the non-custodial parent if he or she would be willing to care for the child. A non-custodial parent can protect the Right of First Refusal by having it added into a parenting agreement, divorce decree, visitation schedule, or other legal document.

A family law judge can also apply a Right of First Refusal at his or her discretion. Some factors the judge will consider include:

• The length and kind of child care requirements expected of the caregiver;
• The ability of the noncustodial parent to provide adequate care for the child;
• The amount of notice that the custodial parent would need to give to the non-custodial parent and the time frame in which the non-custodial parent must respond; and
• Any difficulties imposed by transportation issues and how each parent must take on transportation responsibilities.

Parents who do not want to assign childcare to a co-parent may raise objections to the judge ordering a right of first refusal. The objecting parent must produce evidence to show why a caregiving arrangement with the non-custodial parent would not be in the child's best interest.

To learn more about the parental rights available to you as both a custodial or non-custodial parent, we encourage you to consult with an attorney who is knowledgeable in Illinois divorce and family law. Our team of experienced DuPage County family law attorneys at Kathryn L. Harry & Associates, P.C. is experienced in trying and settling divorce and family law cases throughout northern Illinois. You can contact us for more information about our services online here or at 630-472-9700.