The Right of First Refusal in Illinois

 Posted on January 11,2014 in Divorce

The start of every new year often involves the implementation of new laws that can affect your rights during divorce. For example, this year the “Right of First Refusal”  was codified into state law. It will take effect in 2014 may affect your rights as a parent involved in a custody dispute.

The Law

The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5, was amended within the past year to include the Right of First Refusal in section 602.3. Basically, this amendment was introduced to allow the court, if it finds that it is in the best interest of the child, and the court awards joint custody or visitation rights, to find that both parties will have the right of first refusal to care for the minor children if during the party's normal parenting time an extended absence is necessary.

The synopsis of the Bill, as introduced, suggests that an absence of four hours constitutes the minimum time of absence under which the right of first refusal should be exercised by the custodial parent. The amendment itself, however, does not set a minimum time of absence but rather, it states only that an absence for a “significant” amount of time will invoke the right of first refusal.

Enforceability

Seemingly this new amendment to the Act will be difficult to enforce. The provisions of the bill, while enforceable under section 607.1 beg the question of how a noncustodial parent with visitation rights or a parent with joint custody is to know when their right of first refusal has been denied to them. Regardless of whether custody is jointly held between the parents or if there are just visitation rights, there may be some animosity between the parents which creates a situation where the communication between the two is very limited. If that is the case then there may be little, if any, way to know that substitute care providers have been used when there should have been communication between the parents concerning the right of first refusal.

Additionally, the Act, as amended, uses the term “significant” to describe time of absence which gives rise to the requirement to exercise the right of first refusal and this can and will create some ambiguity and continued difficulty concerning enforcement as it is clearly open for interpretation among individuals and even the courts.

Waiver

There is no section within the Act which discusses the ability to waive any of the provisions within the Act. The Act does, however, give the court discretion to determine what is in the best interest of the child. Arguably, that suggests that a parent who desires not to have custody of the child or children may be able to waive the right of first refusal and allow the custodial parent to decide who will care for the child or children in their absence. Both parents may even come to an agreement where they wish to waive that right and the court, with the discretion it is given, may consider allowing a waiver of the right of first refusal in that situation.

Legal Help

If you or someone you know has questions about your rights as a parent and how the Illinois Right of First Refusal law may affect you as either a custodial or noncustodial parent, contact an experienced Kane County Divorce Lawyer for help.