What is the Right of First Refusal in Divorce in Illinois?

 Posted on March 18, 2025 in Child Custody

In Illinois divorce cases, the court seeks to ensure that the children are negatively affected to the least extent possible. The courts operate with the notion that the more involved both parents are in the child's life post-divorce, the better off the child will be.

Child custody issues have undergone major shifts over the past two decades regarding how parenting time is divided between mothers and fathers. While the presumption once existed that mothers primarily raised the children while dads were given limited visitation after a divorce, that is no longer the case.

Because of this, an important concept in Illinois child custody law that can significantly impact parents' rights and responsibilities is the Right of First Refusal. To understand this important concept, hire an experienced Wheaton, IL parenting time attorney to get the assistance you need for this matter and other matters related to your divorce.

At The Stogsdill Law Firm, P.C., our team of skilled attorneys possesses second-to-none experience. With more than a century of combined experience, our attorneys know every aspect and important consideration involved in divorce, which we can then share with you to maximize the effectiveness of our legal guidance.

Is a 50/50 Parenting Schedule Always Best?

While a 50/50 co-parenting split may be the "ideal," for many families, it simply does not work. One parent may work shift work or extended hours, the children may be older and involved in many extracurricular activities, or they may be younger, requiring more hands-on parenting. The court will first and foremost consider the best interests of the child, including the history of parental involvement to date.

The parent who has always been active and involved in the child’s life is more likely to have a greater amount of parenting time allocated to him or her. Conversely, the court may give a parent who has had minimal involvement with the child or has been inconsistent about exercising time offered with the childless parenting time.

That being said, the less-involved parent may be given the opportunity to extend his or her parenting time. Unfortunately, in some cases, a less-involved parent may ask for more parenting time to avoid higher child support. During parenting time, this parent may leave the child with a babysitter, at daycare, or with friends or family members because the goal was never really about spending time with the child.

The Right of First Refusal and Its Importance in Illinois 

The Right of First Refusal is a legal provision that allows a parent to have the first opportunity to care for his or her child before the other parent seeks alternative childcare arrangements. This means that if one parent is unable to care for the child during his or her designated parenting time, he or she must first offer the other parent the chance to care for the child before asking a third party, such as a friend or babysitter, to care for the child. There are different types of first-refusal rights, including:

• An agreement detailing that if Parent A must be away from the child for a specified number of hours, then Parent B will be called before a third party is called. 
• An agreement detailing that if Parent A is unable to be with the child during a scheduled overnight visit, then Parent B will be called before a third party is called. 
• An agreement that focuses on the third party who would care for the child if the parent with parenting time is unable, rather than the number of hours.

The third example comes into play if the parent with parenting time often leaves the child in daycare. The other parent can request that before the child is left in daycare, he or she should have the opportunity to care for the child regardless of how long that may be. Illinois courts generally assume that time between a parent and a child is preferable over time between a child and a non-parent.

While thankfully not common, an agreement of this type is also used to "rein in" a parent who does not really want extended parenting time, requesting it only to annoy the other parent or to pay less child support. In this situation, a Right of First Refusal makes sense so that the child is not spending significant parenting time being cared for by daycare providers, family members, or friends.

How Does the Right of First Refusal Work in Illinois? 

In Illinois, the Right of First Refusal can be included in a parenting plan, in the allocation of parental responsibilities, or in the designation of parenting time. The agreement will usually outline the specific circumstances under which the provision applies, like when a parent needs childcare for a certain period of time during his scheduled parenting time.

If the parent is unable to provide care during these times, the first parent must notify the second parent and offer her the chance to care for the child before the first parent tries to make other arrangements. These rights are not automatically included in parenting plans unless requested.

If the issue is not addressed at all in the parenting plan, then neither party may demand it. The court will consider whether the parents have the ability to cooperate and communicate when determining whether it is in the child’s best interests to include a Right of First Refusal in the parenting plan.

What Are the Benefits of a Right of First Refusal? 

The Right of First Refusal can promote cooperation between parents and ensure that both parents have meaningful involvement in the child's life. It can also provide consistency for the child by allowing him or her to spend time with both parents whenever possible.

A parent must provide as much notice as possible to the child’s other parent. Similarly, the parent being asked should respond to the notice as quickly as possible, indicating his or her availability. If the second parent is unavailable, the first parent is free to make other arrangements for the child.

Regardless of the level of cooperation between parents, it is always a good idea to document each interaction or communication related to parenting time while including details regarding pick-ups and drop-offs in the event of a Right of First Refusal situation. Clarity in the parenting plan is essential in keeping disagreements regarding what creates a situation that necessitates a Right of First Refusal to a minimum.  

Contact a DuPage County, IL Parenting Plan Attorney

Hiring a lawyer for your divorce is not just in your best interests but in your child's best interests, too. To learn more about your legal options, contact the professional Wheaton, IL divorce lawyers from The Stogsdill Law Firm, P.C.. Our firm is one of the most prestigious in the area; we are a large law firm with serious experience and significant resources that benefit our clients.  Call 630-462-9500 for a private consultation.