In Illinois, the right of first refusal is a misnomer. It’s not a right. It’s only a possible right that is given in some parenting plans.
Illinois law provides that contents of a parenting plan should include:
provisions for the exercise of the right of first refusal, if so desired, that are consistent with the best interests of the minor child; provisions in the plan for the exercise of the right of first refusal must include:
(i) the length and kind of childcare requirements invoking the right of first refusal;
(ii) notification to the other parent and for his or her response;
(iii) transportation requirements; and
(iv) any other provision related to the exercise of the right of first refusal necessary to protect and promote the best interests of the minor child;
In considering including a right of first refusal in your parenting plan, consider the state approved parenting plan available for people representing themselves or parenting plans where that are not complex. That parenting plan has “canned” selections for either no right or for the following la
- If a parent needs childcare for a period of 24 hours or more during their time with the children, they must give the other parent the option to care for the children
before finding other childcare. - As soon as the need for childcare is known, the other parent must be immediately notified.
- The parent offered the right to care for the children must accept the offer within two hours, otherwise the parent needing childcare may use another caregiver.
- Transportation of the children is the same as for other parenting time.
There is nothing magic about a 24-hour provision invoking a right of first refusal. But when you narrow this to a time period such as 8 hours or less, there can be unintended consequences. I’ve seen cases where a parenting might try to invoke this clause where there is the occasional sleep-over at friends houses, etc.
For further resources when thinking about the pros and clause of this clause, review Our Family Wizard’s blog post. It has a well balanced article.
The more common time frames are:
- 8 hours: This is the usual minimum. Most parenting plans to not go under this time period, except when the child is very young.
- 12 hours: This is relatively common. This window basically ensures no overnights without a parent.
- 24 hours: This window before the right of first refusal starts allows a parent with an unusual work schedule 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: Consider 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. Consider selecting this window in higher conflict cases where you are considering more of a parallel parenting plan rather than true co-parenting.
Recall that if there is a dispute over the enforcement of a right of first refusal, generally mediation would be invoked before the matter should be brought to court.
Points to consider:
- Do you and your soon-to-be ex effectively communicate with one another? If you communicate well, then this becomes more of an option.
- Do you live close? If both parents live close to one another to help each other out with pick ups and drop offs, the right of first refusal is a great option. If the parents live further apart, consider longer times or skip a right of first refusal altogether.
- Do you have a vindictive ex? Using the right of first refusal can be tricky, especially when your ex is vindictive. For example, if your child wants to go to your sister’s house (her aunt) to spend time with her cousins and have a sleepover, your former spouse might claim that you did not use the right of first refusal because the child was not in your care and you are withholding extra time being spent with them.
