In family law, the statute Section 602.3 of the Illinois Marriage and Dissolution of Marriage Act, defines Right of First Refusal (ROFR) as “that if a party intends to leave the minor child with a substitute child-care provider for a significant period of time. That party must first offer the other party an opportunity to personally care for their minor child.” In whole, the statute signifies that the minor child is better off spending time with their parents, in opposition to being under a babysitter or daycare’s watch.
In cases where both parents are awarded parenting time with their child, the court will decide to award ROFR to one or both parents. The court will come to that conclusion based on the child’s best interest. An example where this statute is important to a ruling would be if a child were not in school or on a school break for a federal holiday, and the parent with parenting time on that day still had to work. If the other parent can take care of the child, they should be given the opportunity to have parenting time before a relative or babysitter is given that option. If a Judge grants the right of first refusal, the order should contain provisions detailing how it is invoked. The normal time frame for ROFR is eight hours, but parties can agree to include a provision longer or shorter than eight hours.
Flaws and questions arise with the stipulations, or lack thereof in the statute. The statute does not define “leaving the child or children with a substitute child-care provider.” The question remains, if visitation of relatives (aunts, uncles, grandparents, etc.), sleepovers with friends, birthday parties, or a church or synagogue lock-in for the night is defined as leaving the child with a substitute childcare provider. As discussed before, ROFR provisions should be specific and define what or who is a substitute childcare provider and the length of time a parent can be absent before having to invoke the ROFR. The courts have discretion to grant or deny a request for ROFR and they have the discretion to set the time needed before invoking ROFR. For example, in the matter of In re the Marriage of Whitehead, 2018 IL App (5th) 170380 , father wanted a four-hour limit of ROFR. The court ruled that an eight-hour limit was more appropriate for this case, because a four-hour ROFR would cause the parties to contact each other more often than necessary and could lead to potential conflict.
Overall, ROFR is a strong provision in family custody rulings. It grants parents more opportunities to see their children which is in the child’s best interest but also leaves questions unanswered when it comes to visitation of family or friends. The clearest way to implement ROFR is to have the provision invoked for both parents, and, or, to ensure that it is written as concise and clear as possible by the parties’ attorneys so that no future conflicts arise due to that same provision.
Contact Kiswani Law today for your custody and parentage needs at 708-210-9247.