Right of First Refusal for Child Custody

As I recently said, the Arkansas legislature’s recent amendment to child custody laws by “favoring” joint custody has been met with a lot of confusion and criticism. Many Arkansas family lawyers and family law judges view the change as unhelpful because child custody situations are so fact-specific—there should not be a “one size fits all” presumption. The law now requires any careful judge who “disfavors” being reversed on appeal to show why he or she rejected a joint-custody arrangement.

The Arkansas legislature—as legislatures are wont to do—apparently thinks it knows more about child custody than judges. But how far might that paternalism go?

Will Arkansas Go the Way of Illinois?

A recent amendment to the child custody laws in Illinois may be some indication. On January 14, a new law goes into effect in Illinois that allows judges to order a “right of first refusal” for parents who share joint custody of their children. The right of first refusal simply means that any time one parent cannot care for the children during his or her scheduled visitation, that parent must first offer the other parent the right to take the kids. Or, as the statute explains it: “[I]f a 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.”

Like joint custody itself, this sounds like a great idea on paper. And if both parents think that putting a right of first refusal into their custody arrangement is a workable option, judges should probably honor the parties’ wishes. But the new Illinois law allows judges to impose the right of first refusal on the parties, regardless of whether they want it or not. In many child custody situations, a judicially imposed right of first refusal may accomplish little more than further alienating the parties from each other.

Why Restrict the Change to Only Joint Custody Situations?

Interestingly, the new law gives judges this option only in situations where the parties share joint custody. In all fairness to the Illinois legislature, of course, parties who share joint custody—the kind of parents who can get along in the first place—are the best candidates for a right of first refusal. But the right of first refusal seems much more appropriate in situations where the parties do not share joint custody, that is, when one party may not be as suited to making decisions about a child’s well being.

Here is an Illinois family lawyer’s perspective on the change.