Can a Divorced Parent Leave a Child with Another Person?

 Posted on May 28, 2019 in Divorce

The terms of a divorce settlement or judgment will attempt to cover the many different issues the two parties will face as a divorced couple. However, marital settlement agreements cannot possibly cover every situation. One of the most common situations divorced couples with children face is whether or not parents should leave their child alone with another person, such as a babysitter, when they cannot care for them.

It can be upsetting to hear that a child was left with someone other than their parent. This is particularly true when one parent does not personally know the person watching the child. While this type of situation can be stressful and sometimes cause arguments, is it against the law?

The Right of First Refusal

Historically, Illinois did not have many laws on the books pertaining to someone other than a parent watching a child. However, as of January 1, 2014, parents can choose to leave their child with someone else, but they may first have to ask the other parent. This is known as “right of first refusal,” and this right is covered under 750 ILCS 5/602.3. This statute simply requires that, in certain cases, the parent caring for the child could be required to give the other parent the first opportunity to watch them.

For example, suppose Spouse A and Spouse B share custody of their child, and the child is staying with Spouse B for the weekend. Spouse B has to go to work and needs a babysitter for the child. According to the terms of the couple’s divorce agreement, Spouse B must ask Spouse A if they can watch the child before asking anyone else. If Spouse A is unavailable, the child can then stay with whomever Spouse B sees fit.

Terminating Right of First Refusal

The right of first refusal is not applied to every custody case. Divorcing couples can come to an agreement about whether to include right of first refusal in their divorce settlement and when this right is appropriate. Right of first refusal may also be court-ordered when a judge sees fit. When ordering a right of first refusal, the court will consider:

• The length of childcare;
• Notice to the other parent;
• Transportation requirements; and
• Other actions necessary to protect the child’s best interests.

Just as right of first refusal can be ordered by a judge, the agreement can also be terminated by a judge. If a parent’s rights and responsibilities are terminated, or if changes are made to the custody agreement, a judge may decide to terminate or change the right to first refusal.

This was the case in the Marriage of Rogne, 2015 IL App (2d) 140943-U. The mother was the non-custodial parent and petitioned the court to allow her to be given right of first refusal. Upon hearing the case, the Second District overturned the decision of the court of DuPage County, stating it was an abuse of discretion for the trial court to disregard the mother’s availability to care for her child.

Contact a Rolling Meadows Child Custody Lawyer

Divorce is an emotional process for any couple, and sometimes this lasts for years to come. Often, divorced parents cannot come to an agreement about child custody and visitation, and some parents will even try to keep their child from the other parent as much as possible. When this is the case, a family attorney can help.

All parents have rights, and an attorney can ensure those rights are upheld. If you wish to petition for right of first refusal, or if you need help with other divorce and custody proceedings, contact skilled Hoffman Estates family law attorney Nicholas W. Richardson at 847.873.6741 for a free consultation. We will do everything we can to make the divorce process as easy as possible and help you reach the outcome you are hoping for.

Resources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K602.3

http://www.illinoiscourts.gov/r23_orders/appellatecourt/2015/2nddistrict/2140943_r23.pdf