Grandparents play a special role in the lives of their grandchildren, and are often the driving force in custody battles involving their son/daughter and their son-in -law or daughter-in-law. However, many are shocked to find out that, pursuant to Illinois law, they have very little rights. The Illinois Marriage and Dissolution of Marriage Act was amended in 2005 after the Illinois Supreme Court found the previous statute to be unconstitutional as it infringed on the natural parents’ fundamental rights to their children. As such, a grandparent has rights to visitation only if there is an unreasonable denial of visitation by a parent, and either one of five conditions exist, for example, one parent is incompetent, deceased or imprisoned for more than one year, or the child’s parents are divorced or have been legally separated for more than three months, at least one of the parents does not object to the visitation, and the grandparent visitation would not interfere with the visitation enjoyed by the parent not related to the grandparent seeking visitation. In cases involving children born out-of-wedlock, there are other rules that apply and paternity must have already been established. 750 ILCS 5/607.
The biggest problem is trying to prove that there has been an unreasonable denial of visitation by a parent. Just because a parent has “supervised” visitation does not mean that his or her visitation rights have been unreasonably denied. When it comes to a grandparent seeking custody rights, those provisions are even more restrictive. However, there are situations that clearly fit the requirements and grandparents can exercise their right to visitation and/or custody of their grandchildren.