When a couple with children gets divorced, they must make several decisions regarding the children’s care and upbringing going forward. In most cases, both parents will be awarded a designated amount of parenting time (visitation) depending on the allocation of parental responsibilities (child custody) between them. A "right of first refusal" is a subject which arises when a parent intends to leave his or her child with a caregiver for a portion of his or her normal parenting time; that parent must first ask the child’s other parent if he or she can watch the child instead. Parents may reach an agreement on this subject in their divorce, but if they cannot agree, the court will consider whether to award one or both parties a “right of first refusal” in connection with caring for a child during the other parent's regular visitation time. 

Parenting Time 

A substitute caregiver for a child might be a babysitter, a second spouse, a family member, a close friend or a neighbor. Any involved parties should always consider first and foremost the child's best interest. When the court awards a “right of first refusal” in an Illinois divorce, the judge's award will typically clarify the following: 

In 2016, the way in which Illinois courts determine child custody was changed substantially. The Illinois Marriage and Dissolution of Marriage Act (IMDMA ) now calls child custody “the allocation of parental responsibilities,” and visitation is now referred to as “parenting time.” Divorcing parents must fill out a “parenting plan” document which states each parent’s parenting time and parenting responsibilities, as well as certain child-related rights and requirements. Reaching decisions about these issues can be challenging – especially in the midst of a contentious divorce. In some cases, the court will make decisions about parental responsibilities and parenting time for the parents.

Resolving Parenting Plan Disputes

Illinois parenting plans must contain a number of provisions, including provisions that address the following:

• How significant decisions about the child will be made;
• A parenting time schedule that explains when the child will live with each parent;
• How any future modifications to the parenting plan will be handled;
• Transportation arrangements;
• Each parent’s right to access information about the child, such as medical records and school reports; and
• Several other child-related concerns.

Understandably, many divorcing parents have strong feelings about the provisions of the parenting plan. This can make it difficult for many parents to reach an agreement. Before the case is heard in an Illinois court, the parents are typically required to participate in family law mediation. During mediation, the parents work with a neutral mediator who helps them discuss the disputed issues in a constructive, non-adversarial way.  A skilled divorce lawyer may also help parents negotiate a parenting plan, without the need for court intervention.

If you are going through a divorce, you will need to make a variety of difficult decisions involving the separation of your life, your finances, and your property from your spouse. While this can be a lot to deal with, the situation can become even more complicated if you and your spouse have children, because both of you will need to address the allocation of parental responsibilities (formerly known as child custody in Illinois), as well as parenting time (formerly known as visitation), and the decisions about these issues will be written down in an agreement known as a parenting plan, which will be part of your divorce decree. When creating a parenting plan, it is important to work with an experienced family law attorney to ensure that your parental rights and your child’s best interests are protected.

Creating a Parenting Plan

A parenting plan is a legal document that addresses the responsibilities that each parent will have during a child’s upbringing. These responsibilities include making decisions regarding the child’s education, religion, healthcare, and extracurricular activities, and the authority to make decisions in each of these areas may be shared by the parents, or allocated to one parent. Furthermore, a parenting plan will specify where the child will live, the schedule of each parent’s parenting time, and the rules regarding transportation. It may also include the right of first refusal to ensure that a parent will be able to care for their child if the other parent is unavailable during his or her scheduled parenting time.

A married person may consider divorce as an option for leaving a stressful or unhappy relationship and getting a fresh start. Agreeing to dissolve a marriage can be a difficult choice, since a person may be unwilling to give up the unity and love that brought the couple together. The divorce process will require spouses to identify and resolve the legal issues that must be addressed when ending their marriage, including the allocation of parental responsibilities (formerly known as child custody), child support, and the division of marital property. However, the complexity that might be involved in resolving these matters could be a negative for some couples, and ending the marriage could also lead to unwanted attention or embarrassment for either spouse. For spouses who are considering divorce but are unsure about whether to proceed with the end of their marriage, consulting with a skilled family law attorney could identify some alternative options.      

Can Marriage Counseling Be Beneficial?

Working together with a marriage counselor is an option that a couple may be willing to try once issues arise that threaten the relationship. However, the success of these types of sessions will depend on the amount of time and effort each spouse is willing to put in. While counseling may help some couples save their marriage, research has shown that approximately 38% of married couples get divorced within four years of attending marital counseling.

While the results of marriage counseling can vary drastically depending on a couple’s situation, it is still one of the most common routes taken by couples in crisis. Factors such as abuse, financial issues, and the loss of attraction could all result in counseling not being successful in repairing a relationship. In some cases, therapy may help one or both spouses realize that the marriage is beyond repair or that divorce is the best option.

The end of a marriage can signify a new start for a former couple. However, divorce can be difficult for any children who are involved, since they then often have to split time between both parents. A new alternative to having children split time between two houses after a divorce is called “bird nesting.” This refers to an arrangement in which the divorcing parents themselves divide their time in a home, instead of the children being uprooted from the home for parenting time. The parents may each rent their own apartment or condo, or they may share a dwelling where one parent will stay even when it is not their parenting time. This type of parenting solution is not for everyone, but if parents do wish to use this option, their parenting plan document can spell out the allocation of parental responsibilities, parenting time arrangements, and more. 

Pros and Cons of “Bird Nesting”

After a divorce, if either parent has to buy a new house, that is a considerable expense. Renting a small apartment or condo that both parents can share can save a lot of money. Utilities will be less, and there are no property taxes to pay. In addition, there can be emotional benefits to the concept of “bird nesting,” since the children will not have to shuttle back and forth between two homes. Sometimes, this type of situation can even help the parents transition easier after the divorce.

However, there can also be challenges to this type of parenting arrangement. When a couple sells the marital home and go their separate ways, this can provide a clean break once property and assets are divided. On the other hand, if the parents still co-own and live in the marital home post-divorce, the lines in their relationship are often blurred. Basic issues like who pays the utility bills can turn into disputes. If a major home repair or new appliance is needed, the parents do not have a joint account anymore from which to take the money, and therefore, they will each need to contribute to funding the repairs.