Typically when it comes to children, parents possess complete and total rights to their children, including who gets to visit with them. But two things can happen: (1) parental rights may be restricted for whatever reason (e.g., parental abuse); and/or (2) courts recognize that we no longer live in traditional times, but extended family members, like grandparents, are helping raise children, and so in some instances, grandparents may be able to secure visitation rights.
In fact, in Illinois, "visitation" once referred to a parent's time with the child, but that is now referred to as "parenting time." Visitation today refers to a person not the parent of the child spending time with the child.
At Dolci & Weiland, our family law attorneys understand both a parent's right to decide who visits with their child. But we also understand when a grandparent should have visitation rights to a child. We know that society has changed and the traditional model of a family unit is no longer necessarily the norm. We at Dolci & Weiland strive to ensure that what's best for the child is what happens for the child, and if that means grandparent visitation, we will help you fight for it.
Grandparent Rights in Illinois
Grandparents do not have inherent rights in Illinois to their grandchildren. These are rights that are made by the court through a petition to request the same. Grandparent rights, when permitted, will typically materialize as either:
- visitation rights; or
- custody of the grandchild.
In either case, especially the latter, there is a high bar that the grandparents must meet in order to attain grandparent rights. Further, in cases where the grandchild is adopted into another family, just like the biological parents of the child, all rights to the adopted child are terminated – even if prior to the adoption the grandparent had been awarded some type of visitation rights.
The Illinois Process to Obtain Visitation or Custody of a Grandchild
The process to obtain visitation or parental responsibilities (i.e., custody) of a grandchild in Illinois is a long one. But a grandparent can obtain visitation or custody if the evidence is present. As in any other visitation or custody case, a lot of it depends on what is in the best interests of the child, but for grandparent rights, there is a little more to it.
To start a case for visitation or parental responsibilities, you must file a petition either for non-parent visitation or parental responsibilities at the appropriate circuit court. If there is currently a divorce or parentage case pending, your petition will likely be filed at that same circuit court.
Filling out the petition form, however, is not enough. In fact, be more financially and emotionally stable than the parents of the child is also not enough. You must be able to show certain elements are present. For custody cases, these elements include showing:
- the child's parents have voluntarily relinquished the child; or
- the child's parents have been legally deemed unfit.
For grandparent visitation cases, you cannot file a petition in Illinois until the child is at least one year old. In accordance with 750 ILCS 5/602.9, you must be able to show one of the following:
(A) the child's other parent is deceased or has been missing for at least 90 days. For the purposes of this subsection a parent is considered to be missing if the parent's location has not been determined and the parent has been reported as missing to a law enforcement agency; or
B) a parent of the child is incompetent as a
matter of law; or
(C) a parent has been incarcerated in jail or prison for a period in excess of 90 days immediately prior to the filing of the petition; or
(D) the child's parents have been granted a
dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child ... and at least one parent does not object to the grandparent... having visitation with the child. The visitation of the grandparent... must not diminish the parenting time of the parent who is not related to the grandparent...; or
(E) (i) the child is born to parents who are not married to each other; (ii) the parents are not living together; (iii) the petitioner is a grandparent... of the child; and (iv) the parent-child relationship has been legally established. For purposes of this subdivision (E), if the petitioner is a grandparent or great-grandparent, the parent-child relationship need be legally established only with respect to the parent who is related to the grandparent or great-grandparent.
According to the same statute, there is:
a rebuttable presumption that a fit parent's actions and decisions regarding grandparent... visitation are not harmful to the child's mental, physical, or emotional health.
The grandparent filing the petition has the burden to prove that the parent's actions and decisions actually cause undue harm. This burden can sometimes be quite difficult to meet but for the help and guidance of an experienced family law attorney.
Additional Factors an Illinois Court Considers for Grandparent Visitation Rights
Grandparent visitation rights are more likely than grandparent parental responsibilities. That said, in addition to what you provide in the petition to prove the absence of visitation will cause harm to the child, the court will consider other factors, specifically:
- the child's wishes, considering the child's "
maturity and ability to express reasoned and independent preferences as to visitation";
- the grandparent's mental and physical health;
- the child's mental and physical health;
- the length and quality of the child's and grandparent's relationship;
- the grandparent's showing of good faith filing the petition;
- the parents' good faith denying the visitation;
- the amount of visitation requested;
- any fact that testifies the undue harm that will be caused to the child without the visitation with the grandparent; and
- the ability to structure visitation so that conflict will be minimized.
After the court considers these things along with your petition and supporting evidence, you may be granted visitation rights.
Contact Respected Grandparent Rights Attorney in Illinois Today
We know that families today are much more than parents and children, but extended family members play a large role in a child's emotional, physical, and intellectual development. Grandparents, in particular, have taken on strong, leading roles in the family unit. Denying visitation rights can indeed be harmful to the child.
If you are in a situation where a parent – for whatever reason – has denied you visitation of your grandchild, or if you are in a situation where grandchild needs you to take on parental responsibilities, contact Dolci & Weiland today. We will advocate on your behalf. We will guide you in the right direction. And we will work tirelessly to make sure the best interests of your grandchild are upheld.