Posted on May 4, 2020

Right of First Refusal In An Illinois Divorce

The right to have custody of your children, to visit your children or spend time with your children is a parent’s right and no one else’s. This concept is the cornerstone for allocating parenting time in Illinois. Ideally, if you’re not spending time with your children, the children’s other parent should be the adult with them…not a grandmother or a babysitter.  So, if someone other than the parent is watching the children, you can invoke the “right of first refusal” to take the kids into your temporary custody.

The Illinois statute defines the right of first refusal. “[R]ight of first refusal” means that if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children.” 750 ILCS 5/602.3

Agreed Right Of First Refusal In An Illinois Divorce

Most people agree on what the exact terms of a right of first refusal shall be.  These terms will be spelled out in their Agreed Allocation of Parenting Time and Parenting Responsibilities.

Usually, the parties know exactly who the third party that will be supervising the children in the parents’ absence, a daycare, a relative, etc.  The parties can spell out in detail who can watch the children or they can leave the terms broad to accommodate changes in the future. 

The crucial element is the time of parent’s absence which would triggers the right of first refusal.

8 hours: This is the absolute minimum.  This is how long a parent has to leave the house for work.  This doesn’t even include the time it takes to commute to work. 

12 hours: This is relatively common.  A 12 hour window basically ensures no overnights without a parent.

24 hours: A 24 hour window before the right of first refusal starts allows a parent with an unusual work schedule such as policeman or a nurse to have a regular babysitter that they don’t have to cancel if the other parent does not invoke their right of first refusal.

48 hours: A 48 hour window of before the right of first refusal is for parents who travel for work and sometimes have to leave the child with a relative or babysitter when they’re travelling.  Stability for the child is considered more important than time with the parent under this schedule. Few trips only take 48 hours so the parenting plan needs to be very specific as to how the two parties will handle an extended absence of a parent.

Here is the standard “right of first refusal” language that I put in all of my agreed allocations of parenting time and parenting responsibilities.

“Right of First Refusal. If either parent is unable to be present during their parenting time for a period longer than 8 hours, they shall offer the other parent the option to exercise the right of first refusal to care for the children in their absence. The offer shall be made via telephone, email, or Talking Parents as soon as reasonably possible and a response shall be provided, at all times possible, at least 24 hours before the care is needed. The party being offered the right of first refusal may decline without consequence or explanation. The parent who is unavailable during their parenting time shall be responsible for transporting the children to the other parent, unless otherwise agreed. In an emergency situation, the party who becomes unavailable during his/her parenting time shall give notice as soon as possible to the other via telephone call and the parties shall make arrangements consistent with the situation at hand.”

Mediating The Right of First Refusal In Illinois

If two parties disagree upon the terms of the right of first refusal to see their children, they probably disagree on a lot of other matters as well.

When it comes to a disagreement regarding children, mediation is required before turning to the court.

“The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist.  Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule.”  750 ILCS 5/602.10(c)

Cook County Court Rules insist on physical attendance at the mediation.  “Parties and their representatives are required to attend mediation sessions, but are not compelled to reach an agreement.” Cook County Court Rule 13.4(e)(i)(a)

“For the following categories of contested issues, mediation is mandatory unless an impediment to mediation exists:  (1) initial determinations of allocation of parental responsibilities; (2) modification of allocation of parental responsibilities; (3) relocation of the child; 4) non-parent visitation and third party allocation of parental responsibilities.” Cook County Court Rule 13.4(e)(ii)(b)

The right of refusal falls into all 4 categories that the  Cook County Court Rules deem mandatory for mediation.

The cost of the mediation “shall be borne by the parties and may be assessed by the court as it deems equitable without prejudice and are subject to reallocation at the conclusion of the case.” 750 ILCS 5/501(e).

Private mediators usually start at $ 1500 for a full day of mediation in Chicago, Illinois.

Cook County provides free and sliding-scale mediation services to Cook County residents.

Guardian Ad Litems And The Right of First Refusal In Illinois

If an agreement cannot be reached on the right of first refusal and other parenting issues, an Illinois divorce judge will often appoint a guardian ad litem to represent the best interests of the children and make recommendations to the court for final ruling.

Guardian ad litem is a mish mash of English and Latin which means “guardian” “of the suit.”

A guardian ad litem is a lawyer who the court appoints as the representative of the children’s best interests.

The guardian ad litem’s role is mostly investigative.  The guardian ad litem will go to each parent’s house to interview and observe the children and the parents. 

The guardian ad litem will then make final recommendations to the court as to what terms of the parenting plan would be in the children’s best interests. An Illinois divorce judge will follow the guardian ad litem’s recommendations 95% of the time.

In the case of recommending the terms of a divorce case’s right of first refusal, a guardian ad litem will first investigate what is feasible for the two parents. Guardian ad litems understand that people need to work and that people rely on a network of friends and family who are not exclusively the parents children in order to get through modern life.  Guardian ad litems are extremely sympathetic to parents who have other responsibilities and they definitely understand that offering a right of first refusal to a parent who won’t even exercise that right of first refusal is a burden in itself.

Be clear with your goals when talking to a guardian ad litem and be genuine as to why you are trying to get a particular right of first refusal.  The guardian ad litem does not make their decision based on a set of legal standards.  The guardian ad litem tries to do what is right for the children. 

The Right of First Refusal And An Illinois Divorce Judge

If you will not adopt the guardian ad litem’s recommendation. Or, if by some small miracle, your divorce’s only point of contention is the right of first refusal, you can ask the Illinois divorce judge assigned to your case to determine the terms of your parenting plan’s right of first refusal clause.

“[T]he court may consider, consistent with the best interests of the child…whether to award to one or both of the parties the right of first refusal to provide child care for the minor child or children during the other parent’s normal parenting time, unless the need for child care is attributable to an emergency.” 750 ILCS 5/602.3

The Illinois divorce judge will turn to the Illinois statute to determine what right of first refusal schedule best suits your children’s needs.

“If there is no agreement and the court determines that a right of first refusal is in the best interests of the minor child or children, the court shall consider and make provisions in its order for:

  • the length and kind of child-care requirements invoking the right of first refusal;
  • notification to the other parent and for his or her response;
  • transportation requirements; and
  • any other action necessary to protect and promote the best interest of the minor child or children.” 750 ILCS 5/602.3(b)

This will be more of a practical argument than anything.  Instituting a broad and generous right of first refusal is the standard.

If you want to restrict the right of first refusal, explain to the judge why you cannot accommodate the right of first refusal that the other parent is proposing

If you want to invoke the right of first refusal as often as possible, explain to the judge how you will accommodate the other parent’s schedule. 

What Happens If A Parent Does Not Follow The Right Of First Refusal In An Illinois Divorce or Parentage Case?

Once the final parenting agreement is entered, it is presumed that both parents will follow that agreement. 

Most clauses in a parenting agreement are very straightforward such as “Dad will pick up the child on Fridays at 6PM at mother’s house.”

The right of first refusal provides no automatic triggers, however.  The right of first refusal only gets exercised if the parent not able to be present with the children elects to inform the other parent of their absence.

Honestly, if you’re dealing with a pre-verbal child, you’ll never know if your child was with their parent or a relative or babysitter.  A child who cannot speak clearly simply won’t be able to tell you who was with them.  Even a child that can speak is unlikely to say “Mom didn’t get home until 8:30pm.”

But, a child of any verbal ability will be able to tell you if the other parent woke up with them the next morning. 

This is why small windows for the exercise the right of first refusal are often pointless or even counter-productive.  If you don’t live down the street, you won’t be able to quickly take your children AND return them during the other parent’s absence.

But, if you discover that you have not been informed about repeated absences of the other parent where you should have been able to exercise your right of first refusal, you need to document those instances. 

Upon documenting those instances of violating the parenting order, you can file a Petition For Rule To Show Cause (And Adjudication Of Indirect Civil Contempt) coupled with a Motion To Modify Parenting Plan.

Upon showing the documented evidence that the parent was not present with the child, coupled with your testimony that you were not informed per the parenting agreement, the court will require the parent who violated the order to prove that their behavior was not “willful and contumacious.”

The judge is likely to tell the violating parent “knock it off and pay the other parent’s attorneys’ fees.”  This is why you should also file a motion to modify the parenting plan so that the right of first refusal can be expanded or restricted to better fit your circumstances. 

If you have questions about the right of first refusal in an Illinois divorce or parentage case, please contact my Chicago, Illinois family law office to arrange a free consultation with an experienced Chicago divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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