Does My Ex Need a Sitter if I Can Take the Kids?

 Posted on May 19, 2025 in Child Custody

In Illinois, most separated or divorced parents share joint parenting time with their co-parent. Giving up that time with your child can be painful, especially at first, and if you have the chance to spend more time with them when your co-parent is unavailable, the court may recognize your right to do so.

In this blog, you can learn more about the Right of First Refusal under Illinois law. If you have any questions about including it in your parenting plan, an experienced Wheaton, IL child custody attorney can walk you through how to add it and what the court will do to enforce it.

What Is the Right of First Refusal Under Illinois Law?

According to Illinois statute 750 ILCS 5/602.3, the court can award one or both parents the right to provide child care for the minor child or children when the other parent cannot fulfill their parenting time. If this law is included in your parenting plan, in certain circumstances, your ex must ask you to watch the children before hiring a babysitter. The court recognizes that time with each parent is essential to a child’s mental, physical, and emotional well-being. Therefore, the state legislature amended the Marriage and Dissolution of Marriage Act to include the Right of First Refusal.

Some common scenarios where the Right of First Refusal applies include:

• During a custodial parent’s regular work schedule

• When a custodial parent goes on a business trip

• If a custodial parent needs to be away to handle a family or personal matter

• Any period when a custodial parent would need to hire child care

Emergencies are an exception to the rule.

Is the Right of First Refusal Automatic in Illinois?

The Right of First Refusal is not a law that takes effect automatically. To take advantage of it, you must include it as a provision in your parenting plan, meaning you both have to agree to include it in the plan, or the court has to order it.

Before ordering the Right of First Refusal, a judge will consider certain factors. For example, they may question how often each parent may need child care and what type of child care they would use. Who would provide transportation when the right is invoked, and how would invoking it impact the child’s best interests? Would the parent be hiring a babysitter, or asking the child’s grandparents? 

Should the judge decide to order it, they will customize the order to suit your family best. For example, you may be able to invoke the right if child care is needed for more than a few hours, or you may only be able to invoke it if your co-parent needs overnight assistance.

What Happens if My Co-Parent Does Not Comply With First Refusal in Illinois?

If you lawfully invoke the Right of First Refusal, your ex is obligated to comply. If they do not, you can take legal action. You would contact your attorney immediately and discuss taking your ex back to court to enforce the parenting plan.

Talk to a Wheaton, IL Child Custody Attorney Today

If your parental responsibility order does not include a Right of First Refusal provision, talk to a DuPage County, IL custody lawyer at Andrew Cores Family Law Group about adding it to the agreement. You should be able to play a role in who is watching your children when your co-parent cannot, and an experienced attorney will fight to ensure you can. To learn more about your rights as a parent in Illinois, call 630-871-1002 and schedule your free consultation today.