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New “Right of First Refusal” statute: shame on the legislature

Many people have heard about a new “right of first refusal” provision that is taking effect on January 14, 2014. As an Illinois child custody lawyer, I find parents are often concerned about this issue. Too bad the new right of first refusal provision is a failure.

I wrote this article to provide a basic explanation of the law, and some commentary.

Long story short: the statute has no teeth and doesn’t go far enough in creating and protecting the right of first refusal in child custody and visitation situations.

An illusion of progress

The statutory provision at issue is Section 602.3 of the Illinois Marriage and Dissolution of Marriage Act (the “IMDMA”).

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Drafter of Illinois’ first right of refusal provision.

The statute states that “if the court awards joint custody . . . or visitation . . . the court may consider, consistent with the best interest of the child . . . , whether to award to one or both of the parties the right of first refusal to provide child care for the minor child or children during the other parent’s normal parenting time, unless the need for child care is attributable to an emergency.”

What does all that mean?

Even in cases of joint custody, the court is not required to consider the right of first refusal, but it “may” do so.

Is it not human nature to avoid work one is not required to do?

How common do you think it will be for the courts to seriously consider the right of first refusal? Let me give you a few hints. Courts are crowded. Litigation is expensive, and time-consuming. Courts don’t consider anything without litigation. Therefore, the right of first refusal will not seriously come into play as much as many would hope.

The statute is horrible. Judges are required to make custody and visitation decisions based on the “best interests” of a child. Shouldn’t it be implied that the a best interest determination mandates consideration of the right of first refusal?

The right of first refusal should be regarded as so fundamental that it should be automatically granted absent a showing of impracticability or possible harm to a child.

What is the right of first refusal?

The statute defines the right of first refusal to mean 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. ”

By the way, parents can always agree to the right of first refusal, as I state in my earlier article “Parenting time: the right of first refusal.”

What if the court grants the right of first refusal?

If the court grants the right of first refusal, the order shall contain:

  1. the length and kind of child-care requirements invoking the right of first refusal;
  2. notification to the other parent and for his or her response;
  3. transportation requirements; and
  4. any other action necessary to protect and promote the best interest of the minor child or children.

What to do?

If you are concerned about the right of first refusal for your custody or visitation case, you should be. But the other parent may do everything possible to gain power and deprive you of a proper relationship with your children. You can either accept defeat, or fight for what you believe in. Complaining about the law, as I have done in this article, will get you nowhere.

I think this new statute will be near worthless, but I hope I’m wrong.

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).

5 comments… add one

  • I share your frustration as an Arkansas practitioner.


  • When we first wrote this language it had a lot more teeth. Once it came out of the house the language was amended to the point that we currently see in the statute. I promise you we had nothing but good intentions for this bill. If legislators would have left our language intact this would have been a very solid bill.

    • Steven,

      Unfortunately, this current bill has zero teeth, and is, in my opinion, totally worthless. While ruling in the “child’s best interest'” a judge could always require the right of first refusal if he or she wanted to. If what you say about your draft bill is true, and it was actually worthwhile before destroyed by the legislature, then the lesson I’d take from it is that you should not waste your organization’s resources drafting any more bills until circumstances exist such that you can publicly shame those that pass garbage because they a) don’t understand what they are doing, or b) are simply passing garbage to benefit from the guise of supporting proper public policy and shared parenting.

      David Wolkowitz
      Contact Attorney Wolkowitz online

  • I was doing research and recently found the first right to refusal law. My ex that has a history of domestic violence somehow just got custody of my son. 2 weeks ago I found out my x had punched my son in the eye and this past Thursday had learned that his step grandpa is sexually abusing him. My x got custody of my four year old son and I was his primary caregiver . I am an online masters student and am able to care for my son during the day. But his grandmother, the wife of the man that’s sexually abusing him gets to care for him. I have said a hundred times that I feel like the courts ripped him out of my arms and placed him with his grandmother. Is the right to first refusal a given or does it have to be in your divorce decree? If it’s an automatic law then I should have the right to watch my son right? Thank you.

    • Lacey,

      The law is not “automatic” – I’m not sure what you mean by that. In fact, the law only impacts cases in which the custody judgment occurs after the date becomes active. And it seems that is not the situation with your case.

      I am a bit confused by the focus on first right of refusal when you think your son is being sexually abused. It sounds like you should call DCFS. See DCFS’ webpage on preventing child abuse and neglect here and also find their hotline number on that page.

      David Wolkowitz
      Contact Attorney Wolkowitz online


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