Effective January 1, 2014, the Illinois Marriage and Dissolution of Marriage Act was amended by adding Section 602.3 titled “Care of minor children; right of first refusal.” The statute now provides guidelines and parameters for provisions in Custody Judgments dealing with a parent’s right to opt to have parenting time with children when the other parent is unavailable for a “significant” period of time during his or her normal parenting time.
Rights of first refusal provisions have historically frustrated attorneys and parties and fueled myriads of fights and arguments between litigants dealing with custody and parenting issues. While many respect the idea that time with parents takes precedence over time with others, even other family members, it can be extremely difficult to adequately craft right of first refusal parameters that work for the parents and children. Work and social schedules, parents’ or child’s activities, distance between parents’ residences, and a number of other factors affect the feasibility of allowing the parent without possession of the children the right to spend time with the children when the other parent cannot. In many situations, parents might be better off leaving a right of first refusal provision out of a parenting agreement altogether.
When practitioners have faced conflict over right of first refusal provisions, they undoubtedly have run into at least one of a few questions: (1) for what period of time must the parent with normal parenting time be away or unavailable before the provision is triggered and he or she must notify the other parent? (2) who should be responsible for transportation in such situations? and (3) if the parties live a significant distance apart and a more local, third party care provider with whom the children are comfortable is available, would it really be in the children’s best interests to always allow the other parent parenting time in every situation?
Section 602.3 does not on its face dispel or provide answers for these potential questions and issues. Section (b) states in part “…‘right of first refusal’ 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…,” leaving the term “significant period of time” undefined. The statute also leaves “transportation requirements” and “the length and kind of child-care requirements invoking the right…,” open and subject to judicial interpretation.
In family law, every statutory provision must allow for some discretion and interpretation as every family’s situation differs. While Section 602.3 does not on its face provide many answers to historic right of first refusal issues, it is significant that the courts now have the express power to address and deal with these issues. In the future, rulings might be appealed and case law may eventually come into existence further defining some of the statutory definitions and provisions. If anything, the Courts will now be able to join in the often times frustrating and difficult issues surrounding rights of first refusal provisions.