Parenting Time and Right of First Refusal

Rights of First Refusal

by Wes Cowell; updated 26 June 2016 -- suggest a correction

Parties may agree to allow (or the court may order) one or both parties to have a right of first refusal to care for the kids during the other parent's normal parenting time. Agreements (or court orders) must be specific about when the right will be triggered and the notification and transportation protocols. Need advice? Call, leave your info, or scheduleschedule a consult.

Right of First Refusal agreements / awards may serve the child's best interests depending on the circumstances. Parents may agree to such terms, but where the parties cannot agree Illinois law allows the court to consider whether to award one or both parties a right of first refusal to provide child care during the other parent's normal parenting time. 750 ILCS 5/602.3. A "right of first refusal" means that if a party intends to leave a child with a substitute care-giver (a baby-sitter, 2d spouse, other family member, neighbor, etc.) for a significant period of time, that parent must first offer the other parent an opportunity to personally care for the child.

The parties may agree to any language that serves the child's best interest. Parties are well-advised to follow the requirements judges must meet when awarding rights of first refusal. If the court enters an award of a right of first refusal, the judge's award is supposed to define:

Duration of absence: The duration of the offering parent's absence that will trigger the offering of parenting time must be clearly stated.. For example, if the offering parent has to run to the store for 20 minutes and wants to leave the child playing with neighbors, is that absence enough to trigger the right? What if the offering parent will be called in to work for 5 or 6 hours on a weekend?
Alternate Care Options: The kind of child care alternatives that trigger the right must be defined. For example, if an offering parent is called in to work for a few hours, the right of first refusal might be triggered if the offering parent intends to leave the child with a next door neighbor, but NOT if the offering parent may fall back on a second spouse (step-parent) to watch the child.
Offer: A notification protocol must be defined. How much advance notice must (or how little notice may) the offering parent give? Must notice be in writing or is a phone call okay? Does text messaging qualify as "writing?"
Acceptance / Rejection: An acceptance protocol must also be spelled out. How long may the exercising parent wait before accepting or rejecting the offer? If the offer is rejected, the offering parent will need time to make alternate arrangements. How must the acceptance or rejection be communicated?
Transportation: transportation protocols -- if accepted, who will drop off and pick up the kids?

750 ILCS 5/602.3

EXAMPLE: Mom and Dad divorce and have a Right of First Refusal clause in their agreement. They agree that if either will be away from the kids for more than four hours, the offering parent must offer the right of first refusal to the other as soon as he or she learns of the scheduling conflict . . . UNLESS the offering parent may fall back on one of that parent's own parents (the child's grandparents), but not the father's father (the paternal grandfather) due to his history of substance abuse and criminal activity. The exercising parent must accept or reject the offer within 24 hours of the offer or no later than four hours prior to the commencement of the anticipated absence, whichever first occurs. The offer and acceptance/rejection must be communicated in writing: e-mail or text is acceptable.

Mom is to have the kids for the weekend but learns Friday morning she must work Saturday from noon to 4:30 p.m., triggering the right. She e-mails an offer to Dad, but not until 6:00 p.m., Friday evening -- only 18 hours prior to the scheduling conflict -- as she's not allowed to use personal e-mail during work hours and had to wait until she got home. Dad works the overnight shift. Around 03:00 Saturday morning he borrows a phone from a co-worker (coincidentally, the guy Mom dated before she married Dad and who happens to have Mom's phone number programmed in his own phone), logs in, and reads Mom's e-mail. Reasoning that she'll see a text message before an e-mail, her number is already in the phone he's holding, and his own phone is not available, Dad sends Mom a text at 03:03 from his co-worker's phone, accepting the offer.

Mom ignores the early-morning text from her former, stalker boyfriend's number and instead she checks her e-mail: nothing back from Dad. At 08:30, she calls the babysitter. The babysitter agrees to watch the kids but tells Mom that, to do so, she'll have to cancel a visit to her own mother who is in a nursing home and, because of that incovnenience, the babysitter will charge an extra $25.00. Mom agrees and the babysitter cancels her nursing home visit. The babysitter tells Mom she'll take public transportation and will depart at 10:00 a.m. to arrive at Mom's house by 11:30 a.m.

At 10:05, not receiving a confirmation from Mom, Dad sends her a text message from his own phone, saying: "Received your e-mail from last night and accepted; you can drop the kids off at my house at 11:30 on your way to work. Thanks!" Mom texts back "I've already made arrangements with a babysitter and can't change plans."

Dad and the babysitter arrive at Mom's door at 11:30.

You're the lawyer and your client, Mom, calls you on your cell at 11:30 Saturday morning . . . .

You can see why you should work with a lawyer to craft these agreements and keep things clear. Call my office.