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Call the Babysitter or Call Your Ex: It’s Up to the Judge.

In August 2013, the Illinois General Assembly amended the Illinois Marriage and Dissolution of Marriage Act with a bill addressing Right of First Refusal (ROFR) for noncustodial parents*.  The bill underwent significant revisions and the final version gives wide latitude to Illinois family courts.

In a nutshell, ROFR refers to the idea that a custodial parent (CP) is required to offer right of first refusal to the noncustodial parent (NCP) in situations where the CP needs childcare for the child. The new law allows courts to consider whether it is in the best interest to implement this parenting time requirement, while providing for various factors that could affect the child and the parents. For instance, if there is an emergency, the CP is not required to first give notice of ROFR to the NCP.

The old version of the law imposed a four-hour maximum on the amount of time that the CP could leave the child with other caregivers before the ROFR requirement kicked in. The enacted law simply specifies that ROFR takes effect if the custodial parent is going to leave the child with alternative caregivers for a significant period of time. This standard gives courts a much broader range of circumstances to take into consideration. This sort of discretion is typically a positive thing for children because an arbitrary number like four hours could negatively impact a particular child in a number of ways. An arbitrary time limit would likely become one more way for parents to use the court system against one another, rather than working out a workable parenting time schedule which is to the child’s greatest benefit. Of course, absent extreme circumstances, the courts prefer a schedule that has the greatest chance of fostering the relationship with each parent.

Just like the length of time is relevant, so is the type of care provided. This broader language avoids a ridiculous outcome like a child not being able to attend a sleepover at a friend’s home because the NCP must be given ROFR instead.

The judge is also directed to consider the distance between the parents’ respective homes, and whether it’s practical to require that the NCP be given ROFR. The judge must also specify notice requirements. The old law required notice to the NCP within 24 hours of the CP knowing that alternative childcare was needed, and the NCP had to respond within 24 hours. Once again, the amended bill gives the court wider latitude to determine what’s in the best interest of the child. The widest latitude is provided by the catch-all provision which instructs the court to take any other action as necessary to safe-guard the best interests of the children. This underlines the biggest question to keep in mind throughout any legal proceeding concerning children: is it in their best interest, and why?

If you have questions or concerns about any domestic law situation, be it dissolution, visitation, right of first refusal, custody, or child support, give one of the qualified attorneys at McCarthy, Callas, and Feeney a call to discuss your case in full.

*For the purposes of this law and this article, the terms “custodial parent” and “noncustodial parent” refer to who actually has the child with them for scheduled parenting time at a given time. This analysis doesn’t depend on which parent is the primary caregiver parent.


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