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”).

do i need a chicago divorce lawyer

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”).

Comments on this entry are closed.

  • Stefan K. McBride Jan 10, 2014 @ 9:38

    I share your frustration as an Arkansas practitioner.

  • Steven Westerfield Jan 20, 2014 @ 20:58

    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

  • Lacey Adams Mar 30, 2014 @ 21:31

    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.

    • Dave Mar 31, 2014 @ 14:25


      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

  • Bob Sep 24, 2014 @ 20:17

    Thank you for writing such an interesting and insightfully honest article. The right of first refusal is of significant importance to me. On September 12, 2014 I became a father of a beautiful baby girl. Unfortunately, my daughter’s mother does not understand the importance of the biological father in her child’s life. The mother has an older son from a one night stand. We dated very briefly. Since leaving the hospital and returning to her home, the mother has limited my visitation. I did sign the VAP, against advise from counsel, hoping to pursue some form of custody. The mother has stated she only wants to allow two hours of visitation two days weekly between a very specific two hour window when her older son is in preschool. I live five hours round trip from her. I was able to negotiate two days of visits for six hours a week. I’d also like to mention the mother has told me to “get the fuck out of her house” and has threatened to call the police if I didn’t leave while I was visiting our daughter. When I asked why she stated “cause I don’t like you.” Friends of mine that have gone or are currently going through a divorce have had the statute added in their agreement voluntarily with the consent of both parties. After seven weeks of maternity leave my daughter’s mother is returning to work. She plans to put our daughter and her older son in daycare. The daycare provider is a friend of hers, is unlicensed, and will only accept cash payment. My daughter’s mother fully expects me to pay child support plus half of daycare. She also has stated that our daughter can’t leave her house since she is a newborn. I find that interesting cause she takes her to doctors visits, the grocery store, and to drop off her son at preschool, etc. She uses the aforementioned and the fact that she is breast feeding as excuses to not allow me any one on one time with my daughter. I am self employed and work seasonally. My intention was to maximize parenting time by watching our daughter while her mother is working. The mother advises that she will not allow this. Her reason is that daycare providers require payment for full time services regardless of attendance. I’ve made the point to her that if she had the day off she would take our daughter for the day instead of having her go to daycare. If she cared to ask me (which she doesn’t) I would/will say: “that is great, I’d prefer our daughter in the care of one of her parents instead of a stranger of no biological connection.” A majority of the time it can be said that the parents will provide better care for their child than anyone else. I have also agreed that I would pay the daycare provider during days when I watch our daughter. The situation seems common sense to me. Maybe my perspective is bias. It’s apparent the mother is flexing her control, is spiteful, and has some other underlying issues. This is a very emotional situation. I’m attempting to be the best father I can be given the situation. Her mother never really had her father in her life. When he was in her life he didn’t treat her very well or provide the love, care, and support a father should. She seems to want me in our daughters life, but only as much as she determines. I know the statute has just recently been passed. My very highly paid family lawyer seems unsure of the language and practical implication or rather tendency of an “old guard judge” to order the “right of first refusal.” I feel my life is in limbo. I’d move to the area and make every financial and professional accommodation necessary if it will make a difference. Otherwise, if I’m going to be alienated as a parent by both the mother and the courts; I’d prefer to save my money, career and sanity. I’ve been told by friends, coworkers, and a few attorneys to just write the check every month for the next 18 years and go about my life. I have a great career, future, and prior to meeting this women I was incredibly happy. It’s an interesting legal reality. Mr. Wolkowitz I am wondering what, if any, experience or knowledge you have regarding the right of first refusal in contested cases?

    • Attorney Dave Wolkowitz Sep 24, 2014 @ 22:31


      From what you wrote, it’s clear that your child’s mom is a narcissist, has major daddy issues, and has no respect for your relationship with your child. But what stands out the most is that you have a “very highly paid family lawyer” but appear to have almost no decent results. You can pay someone else a lot less and get the same results.

      Also, if you want to do what you can to have your child in your life, you could move closer and fight the good fight in court. Your friends probably have no idea what they are talking about, and either have never lost a child or would be terrible parents themselves. Their input is worthless. On the other hand, I am a lawyer and had my personal child custody case reached the Michigan Supreme Court, where I prevailed.

      That’s my take on it.

      David Wolkowitz
      Contact Attorney Wolkowitz online