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Brandon M.
Brandon M., Family Law Attorney
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Experience:  Attorney experienced in all aspects of family law
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In the state of Illinois how is the right of first refusal

Customer Question

In the state of Illinois how is the right of first refusal work? We have a clause stating:
Parenting Time.

A. Mother and Father shall equally share the minor child's physical possession on an alternating weekly basis, exchanging the minor child each Friday at school then at 6:00 PM at Father's residence unless otherwise agreed.

Education.

A. Mother shall be responsible for ensuring that Selena is taken to school and picked up on time. However, if Mother has a conflict, she shall contact Father to pick up the minor child from school if she cannot facilitate transportation.
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

My apologies but I want to be clear as to what exactly you are requesting. By "right of first refusal", you wish to know how those clauses would work if the other party does not comply?
Customer: replied 3 years ago.
Yes I would like a detailed explanation on how right of first refusal is handled in the state of IL when it is not directly written word for word. Can these statements be misunderstood or taken differently in anyway? How is the word "facilitate" being used or can be used in this statement? If a school is not enforcing this what can I do? Can the police station help us out any?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your patience.

Great, now I understand what you are seeking, exactly.

I will explain below statements and will point out what the other party can, and what other party cannot do

A. Mother and Father shall equally share the minor child's physical possession on an alternating weekly basis, exchanging the minor child each Friday at school then at 6:00 PM at Father's residence unless otherwise agreed.
The statement is fairly straightforward and states that unless otherwise agreed, the transfer point would be father's residence at the specific period of time. That by itself cannot be modified unless both parties agree. There is no means here of getting around this condition essentially unless the father chooses to consent to the change.

---/---

A. Mother shall be responsible for ensuring that Selena is taken to school and picked up on time. However, if Mother has a conflict, she shall contact Father to pick up the minor child from school if she cannot facilitate transportation.
First of all in this situation the school is not required to keep track of your custodial decree and are not entitled to or required to inform you if the mother is unable to pick up the child. Similarly, this is not a criminal matter and police will not assist you. While you can inform the school of these conditions, it is not the school's responsibility to make sure that the conditions are being properly performed. Otherwise this is a fairly straightforward statement and also means that if there's an issue with picking up the child, the parent must contact the other parent. In a situation where the parents will not comply with this condition, the other parent has the right to go back to court and pursue a contempt of court order petition against other parent.

Good luck.
Customer: replied 3 years ago.
In the second statement I would like to know if it can be taken in another way? Facilitate is being seen by the school as the mother can make accomidations to have Selena picked up prior to her having to contact the me to pick up the child. It has caused a problem at the school. And now the school wants to make changes to the situation to avoid further conflict between parties however I believe this will mean I cant see who my daughter goes with during the mothers week. Can I use right of refusal in my defense with only these two clauses in my divorce order?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

My apologies but no, you cannot, unless you later find out that the mother is not at hearing to this order. So far he did not have proof or evidence that she's not going to comply or will get around this order by sending a third-party. If she does, then you can go to court and pursue a modification order or a contempt order against her but not before. As I pointed out in my first answer, the school is not a party to this and they can attempt to keep out of this custodial order as much as possible.

Good luck.
Customer: replied 3 years ago.
There must be confusion because I did not understand your answer. The mother has sent a third party on her behalf. She attempted to send a friend. I stopped it and police got involved and I was able to take my daughter. She then picked her up from my residence when she was able to.
She has now started sending her brother. He started conflict at the school and was making threats because of me taking my daughter when the mother is not present. What does Facilitate mean?????
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

In that situation contacting the school makes a lot of sense. It does appear that the mother is intentionally not complying with the order and therefore informing the school thatthe only parties that are permitted to pick up the child are either you or the child's mother is acceptable and permitted. In this situation, "facilitate" would mean providing transportation and it can be argued by that it does not have to be her directly but it could be an agent of hers, for example a power of attorney or her brother. But you have a stronger case here and can state that the language of the clause expressly states that it would either have to be you or her taking the child and nobody else. You may need to go back to court and get a formal definition because the way the language is written now, she really is and send her brother to take the child and would not be considered to be in violation.

Good luck.
Customer: replied 3 years ago.
To get a definition through the courts do we need to request a court hearing? Or is there a simpler way to go about it?
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

There is no simpler way of going about it simply because each divorce decree or custodial decree is specific to that order or agreement. You can either choose mediation which is nonbinding or you can choose to take her back to court and obtain an order where the language is clarified. It is actually called a "petition to clarify" and that is where you can formally find out whether or not the court demands in this instance that "facilitate" allowed for third parties or not. I suspect that it did, and if that is the case you would have to pursue a modification.

Good luck.
Customer: replied 3 years ago.
Relist: Answer quality.
I need further detailed assistance in the matter.
Expert:  Dimitry K., Esq. replied 3 years ago.
What additional detailed assistance do you require that was not yet provided to you? So far I have answered each of your questions based on how you posed them to me. Please advise.
Customer: replied 3 years ago.
Sorry its just the last expert was more detailed in his answers and gave me different options in handling my situation. Is there another expert I can get assistance from?
Expert:  Dimitry K., Esq. replied 3 years ago.
Sir,

Just because my information is slightly different from the previous experts does not mean that it is incorrect. I have reviewed your previous expert's answers and while I agree with his interpretation, I feel a little bit differently. The fact is this is exactly why there are two sides to every issue and why ultimately it is up to the judge to really set the definition in stone. I have seen judges evaluate your situation on both sides and either interpret this to mean that either party can pick up the child themselves or they can use third parties to do it. Facilitating transportation can either mean that the person does it themselves, or they send a third-party but they are still primarily responsible for the transportation. The way this clause was written is obvious that it was meant to state that individuals are primarily responsible for their own transportation, but the way they wrote it does give the other person the right to use of third-party.

You may not like my answer and I can understand that, but simply hearing information from someone else that sounds better does not make it so. I am legitimately trying to show you how a judge is going to evaluate and why I stated to you that I believe that you have a much stronger case, but until you go to court and get a petition to clarify, the mother is not going to be in formal violation.

Good luck and take care.
Customer: replied 3 years ago.
Not upset with your response or the outcome of it,... i simply believe for the money I can get more.
Expert:  Brandon M. replied 3 years ago.
Hello there:

I have been asked to intervene in this exchange. I have examined the exchange and I believe that I understand what has transpired. However, I was hoping for some more information on where the perceived deficiency is. You had stated:

Relist: Answer quality.
I need further detailed assistance in the matter.

Unfortunately, that provides very limited detail about your specific concerns and what additional information you might feel is helpful. Since I am just now coming into the conversation, may I trouble you for a specific description on how I might help?

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