Right of First Refusal in Divorce

Family Law Blog

Right of First Refusal in Divorce

December 18, 2019 | Divorce, Parenting (Child Custody)

Right of First Refusal in Divorce

A “right of first refusal” means that if a parent intends to leave the minor child with a child-care provider for a significant period of time then that parent must first offer the other parent an opportunity to care for their minor child during that period of time. The theory behind a Right of First Refusal is that the child should be spending time with his/her parents, not a babysitter. Right of first refusals can be court ordered or entered by agreement of the parents. They can be entered on a temporary basis or as part of the allocation of parental responsibilities which finalizes all parenting issues.

There is no definition of “significant period of time,” but it usually is eight hours or longer. In other words, if the parent with the parenting time is going to be away from the child for eight or more hours then the other parent must be given an opportunity to have parenting time. Parents can agree to fewer than eight hours. In theory this makes sense, because, again, the child should be with his/her parents. In practice, however the shorter the right of first refusal the more problematic it can become. Consider a right of first refusal that triggers at four hours. There will probably be many situations throughout the year where each parent may need a babysitter for four hours. In high conflict divorce cases, parents may want to limit interactions with each other.  Also, a right of first refusal may lead to nosy questions by one parent about where the other is going. Further, the logistics of exchanging the child can be challenging.

Right of first refusals generally tend to work best when the parent is is going to be away from the child for 6 hours or longer. This limits the number of times when it will apply while at the same time ensuring the children will be with the parents for quality, extended periods of time.

The Botti Law Firm, P.C. has been practicing family law for nearly 50 years in DuPage and Cook County.  Please contact one of our attorneys at (630)573-8585 if you have any questions or would like to schedule a free consultation.


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