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:
For couples with children who are going through a divorce, one of the most important aspects of the process is ensuring that their child's best interests are met. The courts require that divorcing parents try to work together to create a parenting plan that will determine each parent’s level of authority in making decisions about raising the child, define schedules for the parenting time the child will spend with each parent, and address other relevant issues. If the parents cannot come to an agreement on these issues, these decisions will be made by the judge in their divorce case. The “right of first refusal” is one issue that may need to be addressed in a parenting plan.
What Is the “Right of First Refusal”?
When a parenting plan is approved by the court, it is expected that each parent will follow the court-ordered parenting time schedule. However, situations may arise in which a parent will not be available during their scheduled parenting time, and they may need to utilize a third-party caregiver, such as a daycare, grandparents, or babysitters for a significant period of time. In these situations, the other parent may want to have the option to care for the children.
If a parenting plan includes the “right of first refusal”, it will state that if one parent ever plans on leaving a minor child with a third-party caretaker for a significant timeframe, that parent must first offer the other parent the opportunity to care for the child during that timeframe instead. Depending on the situation, parents may agree that the “right of first refusal” would be in the child's best interest, but if they cannot agree on how this right will arise, then the judge may decide whether to include this right in the parenting agreement, as well as terms specifying how it will be used.
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