Any grandparent who has fought for custody or parenting time with grandchildren in the courts is likely aware of the well-established rule of law that biological parents have “a fundamental interest” in the care and custody of their children. This rule of law can often result in a painful situation where parents prevent grandparents from seeing their grandchildren. Absent a court finding that a parent is not fit, parental rights have traditionally been given deference over grandparents’ rights.
Grandparents rights suffered in the U.S. Supreme Court case Troxel v. Granville: the Court struck down a statute in the state of Washington that allowed anyone to seek visitation with a child if visitation would “serve the best interest of the child.” The Court held that the statute disregarded the presumption that a fit parent makes decisions that are in the best interest of his or her child. Consequently, if a fit parent chooses to deny a grandparent parenting time, the presumption is that the decision is in the best interest of the child and that decision controls (even if the parent is excluding what may be seemingly loving grandparents).
After Troxel, it became increasingly difficult for grandparents across the country to bring custody and visitation cases due to lack of standing. Under the Illinois Grandparent Visitation Act grandparents do have the statutory right to petition the court for court-imposed visitation but only if certain requirements are met.
A more recent Illinois case, however, Robinson v. Rief, 2014 IL App (4th) 140244, is providing some hope to grandparents engaged in custody litigation. In Robinson, the mother was killed in a car accident and the father was severely injured. The two children, also in the accident, went to live with their maternal grandparents for 18 months while their father was in the hospital. The trial court granted the grandparents visitation based on “common sense” and expert testimony that “the children had formed an attachment to the [grandparents] during the 18 months that they had lived together.” The court said that the grandparents had rebutted the presumption that the parent’s decision to cut off the children’s visitation was not harmful to them.
If grandparents can establish a strong emotional bond with the children through testimony of an expert they may be able to obtain court-ordered visitation.