The Right of First Refusal: A Step Toward Less Headaches

Effective January 1, 2014, the Illinois Marriage and Dissolution of Marriage Act was amended by adding Section 602.3 titled “Care of minor children; right of first refusal.”  The statute now provides guidelines and parameters for provisions in Custody Judgments dealing with a parent’s right to opt to have parenting time with children when the other parent is unavailable for a “significant” period of time during his or her normal parenting time.

Rights of first refusal provisions have historically frustrated attorneys and parties and fueled myriads of fights and arguments between litigants dealing with custody and parenting issues. While many respect the idea that time with parents takes precedence over time with others, even other family members, it can be extremely difficult to adequately craft right of first refusal parameters that work for the parents and children. Work and social schedules, parents’ or child’s activities, distance between parents’ residences, and a number of other factors affect the feasibility of allowing the parent without possession of the children the right to spend time with the children when the other parent cannot. In many situations, parents might be better off leaving a right of first refusal provision out of a parenting agreement altogether.

When practitioners have faced conflict over right of first refusal provisions, they undoubtedly have run into at least one of a few questions: (1) for what period of time must the parent with normal parenting time be away or unavailable before the provision is triggered and he or she must notify the other parent? (2) who should be responsible for transportation in such situations? and (3) if the parties live a significant distance apart and a more local, third party care provider with whom the children are comfortable is available, would it really be in the children’s best interests to always allow the other parent parenting time in every situation?