Grandparents’ rights are a relatively new but rapidly progressing area of the law. When grandparents inquire about their rights it is generally because the natural parents appear to be unfit to raise the children and/or the natural parents are not allowing the grandparents to visit with the children.
Depending on the circumstances particular to each family, the grandparents may be seeking visitation rights or to be awarded custody of the children. In either case, the Illinois Marriage of Dissolution of Marriage Act would be the governing body of law in a visitation or custody action. If the grandparents seek guardianship, the Probate Act would apply. In some cases, the grandparents may even wish to adopt the children. In that event, the law of the Adoption Act would govern.
Your lawyer will tell you which type of case you should pursue (if any) based on whether he or she thinks you could meet the requirements of the applicable statute. Each body of law provides different elements and standards that need to be met in order for the grandparents to prevail in their actions. For example, in a visitation case, the court will consider enforcing visitation if one parent is incompetent, deceased, or imprisoned for more than one year. However, the court will not consider a case where the parents are married and embittered and wish to keep the grandparents away from the children. Grandparents in the latter scenario are considered to lack legal “standing” since the statute does not pertain to them.
An experienced family law attorney can help you navigate the various law to determine what choice of action may be appropriate. In many cases, the answer lies in not filing a lawsuit but rather seeing if you can reach an agreement with the parents. An attorney knowledgeable in these matters can advise you how that may be achievable.