Wait, before calling the Babysitter! Bonus Time: Can I see my kids during my ex's parenting time if he or she is gone for a little while?

This comes up a lot in Illinios custody and divorce cases. It is your ex's time to be with the kids but he or she needs to go out and leave the kids with someone. Maybe for work, maybe on a date, maybe overnight on a business trip. It doesn't really matter why, but the bottom line is, your ex-husband or ex-wife is leaving your kids with someone else and you are upset because you would've loved to have that extra time with them.  This can become a problem when it starts happening too often or becomes a pattern. What can you do?

The simplest solution is to let the other parent know how you feel. It is possible that he or she didn't know that you would be opening to spending that time with the kids and doesn't have a problem with it. This assumes some degree of amicability and communication which unfortunately, isn't always the case post-split.

The best way to deal with this, like all issues that come up after a divorce, is to plan for it by agreeing in advance to what is commonly known as the "right of first refusal". The terms can, and should be, written right into your divorce decree.  It has become such an important issue that Illinois law was changed effective January 1, 2014 to recognize the issue. The Illinois Marriage and Dissolution of Marriage Act was amended, effectively adding section 602.3: “Care of minor children; right of first refusal.” Unfortunately, the amendment did little in the way of providing guidance or rules. It did little more than acknowledging the issue and defining the term 'right of first refusal’ to mean that if 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. But we already knew that.

What is a “significant period of time”? That's the biggest issue which comes up. The law doesn't say and while that may be frustrating, it actually has the benefit of allowing the parties (or the court) to make that determination based on the unique circumstances of the parents and kids involved. I have seen it go anywhere from 4 hours to 24 hours, typically. There is no right or wrong answer and the statute makes clear that in deciding right of first refusal issues, the best interests of the child standard applies.

If you are facing divorce and have kids, consider adding a provision to your agreement about this and other child-care related issues. Other things to think about is who will do the driving in these situations, and whether or not the parent who had to go out should be able to finish out the remainder of his or her parenting time. The further the parties live from one another, the hairier it can get.

The proper drafting of right of first refusal issues are only one of hundreds of reasons to leave the drafting of divorce documents to an attorney. If you are contemplating divorce in Illinois, get my free book, Defending the Ending, or call for a personal consultation at either of our two locations: Schaumburg or Itasca. 

Carol O'Connor Cadiz
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Attorney & Owner at O'Connor Cadiz Law: Bankruptcy, Injury, Real Estate & Mediation