Illinois divorce law is specific that at least one of the child’s parents should be with the child if possible. If not, you can invoke “the right of first refusal.”
Often a parent will exercise his parenting time without actually being with the child. The worst cases of this phenomenon are when a parent just drops the children off with his or her mother. Other cases are as simple as a parent going to the grocery store and leaving the child by his or herself for a few minutes.
It’s obvious that the point of parenting time is so the parent can spend time physically with their child. Not just so that the child can spend time at that parent’s house for the weekend.
Illinois law has a procedure for addressing this issue. The procedure is commonly known as “the right of first refusal“.
Section 602.3(a) of the Act provides: “(a) If the court awards parenting time to both parents under Section 602.7 or 602.8, the court may consider, consistent with the best interests of the child as defined in Section 602.7, 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(a)
Section 602.3(b) of the Act provides ” ‘right 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(b).
Practically speaking this means that the the Allocation of Parenting Time and Parenting Responsibilities will include a section that address exactly what the “significant period of time” is and how the parent exercising parenting time is to communicate that absence to the parent who may or may not invoke the right of first refusal.
This period of time can be different for any particular family. Eight hours is very common and so is a twelve hour period. As a child ages into their teenage years, depending on their maturity level, the right of first refusal often becomes ignored by all parties as pointless (teenagers often decide what they’re going to do independent of the parties).
The parent will communicate their absence typically via text or more, ideally, via a parenting app like Talking Parents so as to preserve the record of their communication. The other parent will then elect to pick up the children, “I will pick them up in an hour, then” or the other parent may elect to not pick the children up, “I have an important meeting and I can’t pick them up this time.” Failing to elect to exercise the right of first refusal does not waive the right of first refusal for any future times a parent’s absence may occur.
The ability to exercise the right of first refusal is, in all practicality, governed by the location of both parents. This is another reason to live close to your ex-spouse beyond the 25 mile limit required for relocation without permission (especially in Chicago with its traffic issues)
Additionally, in this age of cellular phones, children are often the ones who report that “mom/dad is not there.” This is not an ideal way to find out about your co-parent being absent. But, this scenario would also allow for the right of first refusal to be exercised.
In the end, the right of first refusal is about holding your co-parent accountable for their actions. Your co-parent has to let you know where they and/or the kids are in a reasonable way. The right of first refusal provides a structure for that.
In my experience practicing family law for over 13 years in Chicago, Cook County, Illinois, the right of first refusal can extend from 8 hours to overnights in a Cook County divorce or parentage case.