Custody Arrangements: The Right of First Refusal

 Posted on November 17, 2014 in Family Law

A recent bill signed into law in Illinois will have a tremendous impact on custody and visitation rights. The law amends the Illinois Marriage and Dissolution of Marriage Act by determining that when one of the parties who has custody or visitation rights with the child(ren) must leave the child for a significant period of time with a third party (for example, nanny, family member, or current spouse), then he or she must offer a right of first refusal to the other custodial parent to take care of the child.

Purpose of the “Right of First Refusal” law

The presumption put forward by the court is that it is advantageous and in the best interests of the child to let the child have significant time with both parents. Most divorce decrees keep this presumption in mind and the courts tend to lean on the favor of joint custody arrangements so that the child may spend significant time with both parents.

This “right of first refusal” requires that parents who leave their child with a third party, for a significant period of time, must offer the opportunity first to the other custodial parent before a third party may come in to care for the minor child. However, "right of first refusal” is terminated upon termination of custody or visitation rights.

Issues to Consider for “Right of First Refusal”

The “right of first refusal” is an excellent way to permit increased quality time with a minor child between the parents, but it also leads to complex legal issues with regards to the enforcement of the “right of first refusal.” The vagueness of the law requires that the court, before enforcing the “right of first refusal,” must take into consideration the following:

• What constitutes a significant period of time? Hours? Days?

• What type of notification must be used? Phone, email, etc.?

• How long does the other parent have to respond before a third party may step in to care for the child?

• What constitutes an emergency where “right of first refusal” is not required?

• What are the transportation requirements?

• How close do the parents have to live to each other for “right of first refusal” to be invoked?

How to Make “Right of First Refusal” Work for You

These types of issues have yet to be contemplated and will lead to substantial confusion between parental parties. However, to limit the amount of confusion, if parents are interested in a “right of first refusal,” it may be necessary to amend current custodial or visitation rights to incorporate answers to the above mentioned considerations.

For example, a divorced couple may want to amend and include into their custody agreement that a “right of first refusal” should be invoked when the parent has to go on a work trip that lasts longer than 24 hours. If the couple lives close by and has flexible hours, the “right of first refusal” may be invoked more often as it would be easy to drop the children off with the other parent. It becomes more difficult when parents have rigid schedules and live far away; “right of first refusal” would be hard to enforce if parents live two hours away and a child only needs to be watched for four hours.

Experienced Family Law Attorneys

If you and your divorced spouse are interested in invoking the “right of first refusal,” it is important that both parties seek counsel from their attorneys regarding the ramifications and consequences of “right of first refusal.” Seeking guidance from experienced DuPage County family law attorneys at Mevorah & Giglio Law Offices will help to identify possible issues that may result from “right of first refusal” and may also help divorced couples navigate these complex issues. Contact Mevorah & Giglio Law Offices today to schedule a confidential consultation.