Can I Keep the Kids if My Ex Is Not Available for Visitation in Illinois?

 Posted on August 14, 2025 in Child Custody

In Illinois, laws surrounding child custody, known as parental responsibilities, are ever-evolving to ensure that the best interests of the children involved are protected. Family courts generally agree that spending as much time as possible with parents is always best for children. 

In keeping with that goal, the law allows for something called the "right of first refusal." However, there are some stipulations, and an experienced Kendall County, IL parental responsibilities lawyer can help you ensure this condition is part of your parenting plan.

What Is the "Right of First Refusal?"

The right of first refusal is addressed in the Illinois Marriage and Dissolution of Marriage Act. In general, it requires parents to ask one another to watch the children first when they are unavailable for their scheduled visitation, known as parenting time in Illinois, before finding a babysitter or someone else to watch them. In Illinois, this right is often included in parenting plans or court orders when it is in the best interest of the children.

How Does "Right of First Refusal" Work in Illinois?

If the right of first refusal is part of your custody order, you and your ex must offer each other the chance to care for the children when you cannot do so. For example, if your ex has to work late or go on a trip, they should let you know and give you the option to take care of the children. If you decline, then they can seek other arrangements.

The time period for the right of first refusal may also be defined in your order, often applying to childcare needs that last several hours. For some, it only applies to situations where the parent is not available overnight. You can work together to decide the specific conditions for your parenting plan, or the court may decide for you.

Is the "Right of First Refusal" Automatic in Illinois?

Right of first refusal is not automatic in Illinois. If it is not in your parenting plan, it cannot be enforced. The court also gets to decide whether this right is appropriate based on your case. They consider many factors, including the relationship you both have with your children, your work schedules, and your availability.

You will find that these same principles, under 750 ILCS 5/602.7, guide all decisions about parenting time. The focus is on ensuring the children have frequent and meaningful contact with both of you. If the right of first refusal is not currently included in your parenting plan, an experienced family law attorney will work with you to file a petition to modify your custody agreement so it can be added. 

Talk to a Lombard, IL Parental Responsibilities Attorney Today

If you have questions about visitation, parenting plans, or the right of first refusal, contact a Kendall County, IL parental responsibilities lawyer at The Law Offices of Robert F. Kramer, Ltd. for guidance. With over 40 years of experience, our accomplished trial and appellate attorney will support you every step of the way. We are committed to providing clear guidance and strong representation, helping you navigate the legal process with confidence. Call 630-785-2400 today to schedule a free 30-minute initial consultation and get the assistance you need to protect your time with your children.