New Law: Right of First Refusal for Child Care

Every new year brings new laws and amendments to old laws.  One law that has gone through many changes over the years is the Illinois Marriage and Dissolution of Marriage Act (IMDMA).  Beginning January 1, 2014, the State Legislature has forged a new tool that is now available to protect the best interests of children and to encourage (or compel) maximum time with both parents. The amendment provides a right-of-first-refusal for childcare.

The IMDMA has a primary focus on protecting the best interests of children.  Children often take second fiddle when the emotion swirling around the failed marital relationship is playing its swan song.  Sometimes the swan song ends and life begins anew after divorce, equilibrium is found, and both parents are able to work together again for their children’s best interests.  Sometimes, however, the swan song dies hard, and children continue to be caught up in the emotional turmoil of two parents struggling with each other as ex-spouses. It is not much different in paternity cases, and maybe even more exaggerated, as there is often less bond or commitment between the parents in paternity cases.

It should go without saying that two parents should work together to protect the best interests of their children, but that often does not happen. If parents do not work together for the child’s best interest, the court will intervene. The court is obligated to protect the children’s best interest, and that includes providing for time spent with both parents.

The amendment that took effect on January 1, 2014, is an extension of the presumption that generous time with both parents is in a child’s best interests by creating a “right of first refusal” when childcare is needed for the custodial parent. This new tool found in Section 602.3 of the IMDMA applies when one parent has custody of the child(ren) but intends to leave the child(ren) with a child-care provider for a “significant period of time”.  The situation can arise in any number of ways: when the parent is regularly scheduled to work; when the parent is called away to work for a significant period of time; when the parent needs to leave on a business trip, to attend to family or other matters. Any time a parent knows in advance he/she will be absent for a significant period and makes plans for child-care, the custodial parent may be obligated to extend the opportunity to the other parent to provide that childcare.

This right of first refusal can be granted in an initial parenting order or divorce decree in conjunction with the award of joint custody and/or visitation. It can be incorporated into a joint parenting agreement by agreement of the parties. When ordered or approved by the court, this right of first refusal becomes enforceable. The right of first refusal provides an opportunity for the non-custodial parent to care for the child(ren) in lieu of a third party child-care provider (or a friend or other family member) if child care is needed during the custodial parent’s time with the child(ren).

The law is certain to require some tweaking and some interpretation in the implementation.  The law creates a right that can be implemented by the court, but the right is not presumed; a court must order the right of first refusal in its discretion; and the right can be granted either to one or both of the parties.  When ordering a right of first refusal the court must consider:

• The length and kind of child-care requirements that trigger the right;
• How notification should be given to the non-custodial parent and how the non-custodial parent should respond;
• Transportation requirements; and
• Any other action necessary to protect and promote the best interests of the child.

As with most laws, this amendment exhibits a certain amount of common sense.  The common sense arises from a presumption that children should have maximum time with both parents within the confines of a set custodial arrangement and without creating instability.  Not all parents, especially divorced or never married parents, may agree with that presumption, but that is the presumption of the law nevertheless.  For better or worse, parents will always have their children in common, regardless of the status of their relationship, and children should not suffer for the failure (or complete lack) of their parents’ relationship.

Many parents are able to put differences aside for the betterment of their children and encourage good relationships and time with the other parent. Attorneys, however, often see the results of parents who cannot put differences aside and have to deal with them. Sometimes parents see their time with the children possessively as “their time”; and sometimes parents are not so willing to share, even when the parent requires childcare.  Parents sometimes would rather leave their children with a babysitter, a relative, a neighbor, or anyone else other than the other spouse.  This tendency, unfortunately, is all too commonly seen by family law attorneys.

The right of first refusal is likely to help aggrieved parents have more time with their children and help children have more time with both parents.  The law cannot change the hearts of people, but laws can be tools to compel people to “do the right thing”.   This new law will not necessarily compel parents to have good will toward each other, or to patch up broken relationships, but this new amendment to the IMDMA is intended to compel more sharing of parental time by the custodial parent with the non-custodial parent when the custodial parent needs childcare.

Carolyn D. Jansons

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