What is Right of First Refusal?

Under the Illinois Marriage and Dissolution of Marriage Act (Section 750 ILCS 5/602.3 of the IMDMA), a Court may award either or both parents the right of first refusal (ROFR) defined as follows: “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.”

Key points about the Statute and its Application

  1. ROFR is not automatic and only applies if it is agreed upon by both parties or court ordered. Generally, the right of first refusal must be included in a parenting plan entered by the Court to be enforceable.
  2. The Court’s determination on whether to award right of first refusal is based upon whether it is in the children’s best interests. The Court has discretion to award the right to one parent, both parents, or neither depending on the facts of the case which include but are not limited to the parents’ relationship, communication history and work schedules.
  3. There is no “one size fits all” ROFR. The statute does not define “substitute child-care provider,” “significant period of time,” or logistics of the “offer to the other party” such as to how notice is given or how quickly the other parent must respond if offered the time.

Substantial Negotiation and Court Discretion

The statutory framework intentionally allows for substantial negotiation between parents and court discretion. Accordingly, whether a ROFR provision is helpful to your children and fits into your family dynamic depends on how it is drafted. When drafted properly, benefits of the “right” include more parenting time, promotion of family connections, a reduction in childcare costs and the development of better communication skills between parents.

Negatives of a ROFR is the potential for high conflict or a “fight” when the provision results in frequent notifications and schedule changes or no flexibility exists when parents rely on grandparents, stepparents or trusted caregivers who have established close relationships with the children. Under these circumstances the right may result in a fight as exercising or enforcing the ROFR becomes burdensome and frustrating.

What to Include to Increase the Success of Right of First Refusal

  1. Define “significant period of time” as a time period that makes sense for your family. For example, a provision that requires that a party offers the other the ROFR when he or she is not available to care for the children overnight, is less likely to create issues if it arises on occasion and often causes minimal conflict. If the triggering time period is less than overnight, parents should consider if “significant period of time” will lead to more conflict when applied to your current parenting schedule.
  2. Define “notice requirements” and “response time” to identify when and how a parent must give notice (phone call, text, email, or parenting communication application such as Our Family Wizard or Talking Parents) and how much advance notice is expected when possible and when the other parent must respond so the offering parent has sufficient time to secure childcare if the party offered time is unavailable.
  3. Define the ‘transportation logistics” to set forth who is responsible for picking up and dropping off the children during the ROFR period.
  4. Define or carve out who is considered a “substitute childcare provider” to avoid disputes that involve the children staying with grandparents, stepparents, or having play dates or a sleepover at a friend’s house while the other party is unavailable.

The purpose of ROFR is to create a seamless framework where both parents welcome the opportunity to spend more time with the children and lean on each other when unavailable to care for the children for an extended period of time. The purpose is not to micromanage the other parent’s time and create a situation for a “gotcha” scenario for not offering ROFR.

ROFR may be a strong tool for parents who communicate well and share a common goal of maximizing each other’s involvement in the children’s lives. In high conflict cases, the provision may create more disputes than benefits if utilized for the wrong purpose.

The attorneys at Beermann LLP will help you determine if a ROFR provision is beneficial to your family and if so, will draft clear language tailored to your family’s needs and ensure that the provision is intended to promote stability, cooperation, and the best interest of your children.

Brooke I. Golding, Partner
For more on Ms. Golding, please visit: https://beermannlaw.com/team/brooke-i-golding/.