In Illinois, the laws surrounding custody and visitation rights extend beyond just parents. Third parties, such as grandparents, stepparents, or other family members, may also seek custody or visitation rights under certain circumstances. The applicable laws are designed to prioritize the best interests of the child while also recognizing the importance of maintaining familial relationships.
Third Parties Seeking Custody
Illinois law allows third parties to petition for custody of a child under certain circumstances. This typically occurs when the child is not in the physical custody of one or both parents. To be granted custody as a third party, the non-parent would file a petition for allocation of parental responsibilities. While ultimately, the Court would conduct a best interest of the child
analysis, non-parents have to show that they have standing to file their petition. Standing for third parties is handled under 750 ILCS 65/601.2(b)(3-5).
Do You Have “Standing”?
“Standing”, at a very basic level, is just a determination that the person filing the case has the ability to do so. It does not have to do with the merits of the case, but rather that the petitioner can ask for relief from the court in this case.
A third party has standing to seek custody when the child is not in the physical custody of one or both parents. Essentially, standing depends on whether the child has been in the custody of a person other than a parent, and the degree to which a parent seeking custody has maintained regular contact with the child. Absent standing, a court will not be able to consider a best interest
analysis.
If a non-parent is able to withstand a challenge to standing, then the court will ultimately conduct a “best interests” analysis. In such a case, the court will consider various factors, including but not limited to the relationship between the child and the third party, the wishes of the child (if the child is old enough to express a preference), the mental and physical health of all involved, and
any history of abuse or neglect. There is an established presumption that a fit parent has a right to the care and custody of their child, and that this right is superior to that of a non-parent. However, this presumption is not absolute. If you wish to seek custody of a child to whom you are not a parent, please contact an experienced attorney to assist you in the process.
Visitation Rights for Third Parties
A non-parent can also seek visitation rights of a child, as opposed to custody. This commonly happens in a situation where there is a significant relationship that exists between the child and the third party, but the primary custodian (usually one or both parents) is unwilling or unable to facilitate visitation. Situations that arise in this include when a parent is deceased, missing, incarcerated, and other instances.
To obtain visitation rights as a third party, again, the petitioner will ultimately have to demonstrate to the court that the visitation would be in the best interest of the child. Similar factors to those above are considered, with a focus on the nature and extent of the relationship between the child and the third party.
Again, before a court considers the best interests of a child, the petitioner must first demonstrate that they have standing. Section 750 ILCS 5/601.2 of the Illinois Marriage and Dissolution Act handles the standing of grandparents and other non-parties. Similar to third party custody cases, there is also a liberty interest of parents, who have a fundamental interest in the care, custody, and control of their children. Within this is the notion that parents have a right to determine with whom their children should associate. Lulay v. Lulay, 193 Ill.2d 455, 473-74 (Ill. 2000). Because of this principle, the permittance of a third party to have court-ordered visitation with a child is an interference to the right of the parents. The reason that a third party must clear the standing bar is to protect the rights of the parents. As such, courts will strictly construe the standing provisions of the Illinois Marriage and Dissolution of Marriage Act in order to interfere with a parent’s right as little as possible to effectuate the interest of maintaining the relationship between, for example, a grandparent and their grandchild. In re Visitation of J.T.H., 2015 IL App (1 st ) 142384.
There are many uphill battles a third party may face when trying to seek visitation, and the law is constantly developing in this realm. It is essential for third parties who are seeking custody or visitation rights to consult with an experienced family law attorney, as there are multiple challenges to seeking this before a court, and the standard for prevailing as a third party in such a case can be difficult to attain. If you are in the Chicago area and you have questions about seeking child custody or visitation as a non-parent, contact Anderson Boback & Marshall today for a free consultation.
