In your parenting plan or child custody agreement, the well-being of the child should always be the top priority. Many Illinois Courts operate on the assumption that a time between a child and parent is generally preferred over time between a child and non-parent. One tool used to address this concern is the “Right of First Refusal.” This legal concept plays a crucial role when the goal is to have the maximum parenting time for both parents.
Understanding the Right of First Refusal
The Right of First Refusal is a legal provision that allows a parent the opportunity to spend time with their child when the other parent is unable to do so during their scheduled parenting time. It is intended to promote the child’s best interests by ensuring that the child has quality time with both parents. In Illinois, the Right of First Refusal is addressed in a parenting plan or custody agreement.
What if my parenting plan does not address the right of first refusal at all?
The Right of First Refusal has to be specially added to the parenting plan or Order of Court. If the Right of First Refusal is not addressed at all in your parenting plan, then neither party is provided the Right of First Refusal. It is not automatic. The Court has to determine that the Right of First Refusal is appropriate and in the best interests of the minor child, or else the Right of First Refusal does not apply. The Court considers whether the parents have the ability to communicate and cooperate, when the Court determines if the parties exercising the Right of First Refusal is consistent with the best interests of the minor child.
Key Elements of the Right of First Refusal
Definition: The Right of First Refusal essentially means that if one parent cannot be with the child during their scheduled parenting time, they must offer that time to the other parent before seeking alternative childcare arrangements. Your parenting plan should define the Right of First Refusal as applied to your specific case.
Notice: The parent who is unavailable during their designated parenting time must provide reasonable notice to the other parent before they allow a non-parent to care for the child during their parenting time. The child custody agreement may specify the required timeframe of advance notice that is required. The general rule is notice must be provided “within a reasonable timeframe” when no timeframe is provided for in the child custody agreement.
Timeframe: The duration of the time period can vary from case to case. It can be as short as a few hours or as long as a day, depending on what is specified in the custody agreement or parenting plan. Many parents agree that the Right of First Refusal only applies when the parent designated to have parenting time is unavailable overnight. If the timeframe is not specified in your visitation agreement or parenting plan, the judge may infer a reasonable amount of time or may infer that the right should apply for any amount of time. The best practice is to be as specific as possible in designating timeframes in the parenting plan.
Qualifications: The parent must be fit and able to care for the child during the time period for the unavailable parent to be required to provide the minor child to the other parent. If the other parent is unavailable, the first parent can make alternative childcare arrangements and is not required to provide to the child to the other parent’s designee. If there is a real and present risk of serious endangerment, the withholding of the minor child from the other parent is not generally considered to be non-compliant or contemptuous.
Significance of the Right of First Refusal
The Right of First Refusal serves multiple purposes in Illinois custody cases:
Maximum Parenting Time: The primary goal of the Right of First Refusal is to maximize the amount of parent time a child has and minimize the amount of non-parent time. By allowing the other parent to spend significant period of additional quality time with the child, it fosters a strong parent-child relationship and may advance the best interests of the minor child.
Consistency and Stability: It promotes consistency and stability in the child’s life. Knowing they can spend time with the other parent when the custodial parent is unavailable helps reduce disruptions in the child’s routine. However, the opposite may be true when the minor children do not experience cohesive transitions between homes of each parent.
Reduced Need for Third-Party Care: By offering the other parent the first opportunity to care for the child, it can reduce the need for third-party childcare arrangements, which can be costly and sometimes less ideal for the child.
Cooperative Co-Parenting: The Right of First Refusal encourages co-parents to work together in the best interests of their child. It requires communication and cooperation between parents, which can lead to healthier relationships and reduced conflict. Typically, the Right of First Refusal should not be awarded to parents that have no realistic ability of communicating and cooperating.
Operating the Right of First Refusal in Illinois
The specifics can vary depending on the specific terms outlined in the custody agreement or parenting plan. Here are some practical aspects to consider:
Notification: The custodial parent must provide notice to the non-custodial parent when they require a third party to care for the child during their scheduled parenting time. This notice should include the start and end times of the period.
Response Time: The non-custodial parent should respond promptly to the notice, indicating whether they are available to exercise their parenting time. If they are unavailable, the custodial parent can make alternative arrangements.
Pickup and Drop-off: Details about where and how the child will be picked up and dropped off should be clearly outlined in the custody agreement. This ensures a smooth transition between parents.
Documentation: It’s advisable to maintain documentation of all communications and interactions related to the parenting time. This can be valuable in case of disputes or disagreements.
Flexibility and Cooperation: Both parents should approach the Right of First Refusal with flexibility and a cooperative mindset. The ultimate aim is to benefit the child, and cooperation between parents is essential.
Challenges and Disputes
Despite its many benefits, it can also give rise to challenges and disputes in Illinois child custody agreements and cases. Common issues include:
Lack of Cooperation: If one parent is uncooperative or unresponsive, it can lead to conflicts and difficulties in implementing the Right of First Refusal. Beyond a lack of cooperation, some parents proactively act in bad faith to utilize the Right of First Refusal to demand the other party’s location or police the other parent in another manner.
Different Definitions: Disagreements may arise over what constitutes a situation necessitating the Right of First Refusal. Clarity in the custody agreement is crucial. If the custody agreement does not mention the Right of First Refusal, this typically means the Right of First Refusal does not apply.
The Right of First Refusal for Grandparents: The judge can order the right of first refusal to grandparents under extraordinary circumstances, however, grandparents are generally not entitled to the Right of First Refusal. However, most judges will provide reasonable consideration to the grandparent-grandchild relationship in determining how rigidly the Right of First Refusal should be applied. The Courts may allow an exception to the requirement of the Right of First Refusal for grandparent time.
Inconsistent Application: Some parents may inconsistently apply the right, leading to confusion and frustration. Consistency and honesty is key to successful implementation. If the parent with parenting time is unavailable but is untruthful with the other parent, then the other parent would be deprived of the parenting time awarded to them pursuant to the Right of First Refusal.
Changes in Circumstances: Changes in work schedules or living arrangements can impact the ability to exercise the Right of First Refusal, leading to disputes over its application.
Court Intervention: In some cases, court intervention may be necessary to resolve disputes regarding the Right of First Refusal.
The Right of First Refusal can be a powerful tool in Illinois custody cases, and it can help significantly in cooperative co-parenting. However, to be successful, it requires clear communication, cooperation, and a commitment to good faith co-parenting. In crafting a custody agreement or parenting plan, it is essential to provide detailed and specific provisions to provide clarity on the Right of First Refusal and to prevent misunderstandings and disputes.
Scheduling a Custody Attorney Consultation
If your case is facing challenges related to these issues, it may be time to schedule a consultation with an attorney experienced with Illinois parenting plan agreements. Reach out today by calling or texting (815) 200-8802 to schedule a consultation with Attorney Zach Townsend and learn how Pro Legal Care LLC can help you create a new path forward for your family.