Like it or not, the right of first refusal is now the law in Illinois for family law cases. House Bill 2992 that went into effect January 1, 2014, amends the Illinois Marriage and Dissolution of Marriage Act. The new 750 ILCS 5/602.3 specifically states that if the court awards joint custody or visitation rights, the court may consider, consistent with the best interest of the child, whether to award one or both parents the right of first refusal to provide child care for the child during the other party's parenting time.
For purposes of this statute, "right of first refusal," unless otherwise agreed upon by the parties, means that if a party intends to leave the minor child or children 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 the minor child or children.
I have been following this act or a few months now and the final language is actually different than how it was originally introduced. Originally, the proposed change would have been mandatory on the court and spelled out that the time frame had to be more than four hours before the act was triggered. The statute that is now in effect at least leaves it up to the judge as the final arbiter of the best interest of the child in a custody dispute, but it leaves the "significant period of time" in which this child care would take place open to interpretation.
Over the many years I have been practicing family law cases, I have had several clients who wanted to pursue or agree some sort of right of first refusal provision. As a general rule, I discourage such provisions. They are notoriously difficult to enforce and even harder to prove there has been a violation because oftentimes the only people who can testify are the parents and the child (who should not be forced into court to testify). Nevertheless, that does not usually discourage people from trying to drag the other party back to court in hopes of a contempt sanction for violating the right of first refusal. This only increases the animosity between the two parents and only serves to increase their legal fees and costs.
While this law may be well meaning and I will, no doubt, try to use it to my clients' advantage where possible, I believe it is a case of misplaced good intentions. As always, if you find yourself in a situation where the right of first refusal may apply to you, discuss the pros and cons of your individual case with your family law attorney.
Labels: child custody, divorce, divorce lawyer, divorce petition, ex husband, illinois, litigation, right of first refusal, Temporary relief, visitation