As Chicago family law attorneys, grandparents often inquire about custody and tell me that their son or daughter is incapable of parenting their child. Since they consider their offspring and the child’s other parent unfit, grandparents seek to obtain custody of their grandchildren.
Table of Contents
Rights of Grandparents In Illinois
While the State of Illinois does recognize that grandparents have a limited right to see their grandchildren, their right to parenting time with a minor child or seeking custody of that child depends greatly on the specific situation and dynamics of the family. Prior to laws passed in recent years, getting court-ordered parenting time or custody of a minor child as a grandparent was extremely difficult. However, Illinois changed its laws on grandparent parenting time as it was recognized that the traditional family dynamic has changed over the years resulting in many grandparents having a much larger role in the care and support of their grandchildren.
Filing a Petition for Parenting Time or Custody
In filing a petition for parenting time or custody, grandparents need to prove first that they have standing in the case. Standing is a legal concept that requires a party to a case have some injury in fact that would directly relate them to the case. However, recent case law in these types of cases has leaned more toward the idea that standing is just one element grandparents must plead and prove in their petitions. For example, grandparents would need to show the court that they have been unreasonably denied parenting time with their grandchild by the grandchild’s parent. The grandparents are not required to show that they have physical possession of the minor child at the time of the filing of their petition.
Besides showing that they have been unreasonably denied parenting time with the minor child, pursuant to Section 602.8(C)(1) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), grandparents of a child who is at least one (1) year old at the time would file a petition requesting parenting time only if they can prove that at least one (1) of the following conditions is met:
- the child’s other parent is deceased or has been missing for at least 3 months;
- a parent of the child is incompetent;
- a parent of the child has been incarcerated in jail or prison for at least 90 days;
- the child’s parents are divorced or legally separated, or there is a pending divorce or custody case; and at least one parent does not object to the grandparents having parenting time; or
- the child was born out of wedlock and the parents do not live together.
If the requirement under Section 602.8 is met, the Court will then review specific factors that are also outlined in the IMDMA in Section 602.8(b)(5). The factors that the court considers when deciding if a grandparent will get custody of a minor child or children or get parenting time are as follows:
- The preference of the child if the child is old enough to state one;
- The mental and physical health of the child;
- The mental and physical health of the person/persons seeking parenting time;
- The length and quality of the relationship between the child and the person/persons seeking parenting time;
- The quantity of the parenting time requested and potential adverse impact on the family;
- Whether the child resided with the grandparents for at least 6 consecutive months with or without their parent/parents present;
- Whether the child had frequent and regular contact or visitation with the grandparents for at least 12 consecutive months;
- Whether the grandparent was a primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month time period immediately preceding the commencement of the filing of the petition by the grandparents.
Requires a Showing of Parent-Like Relationship
Grandparents who file a petition for custody or parenting time will be required to show that they have more than just a biological relationship with the child, but a strong bond and nurturing parent-like relationship. Courts tend to trust a parent’s judgment when a grandparent is denied parenting time with a grandchild, but this can be overcome with the right set of facts and with an attorney who knows how to present the case to the Court.
In addition to the factors listed above, it is important that grandparents are able to show the court that there if they are cut off from their minor grandchild and continue to be denied parenting time or custody, this would cause harm to the child’s mental, emotional, and/or physical health. The grandparents are not required to have possession of the minor child at the time of the filing of their petition for parenting time or custody, as recent laws have changed this requirement, but it certainly helps if this is the case.
Seek Advice from Experienced Grandparents’ Rights Attorney
Obtaining custody or parenting time as a grandparent has many nuances and requires the navigation of specific legal procedures. Retaining an attorney experienced in grandparent custody cases is important to ensure things go smoothly and you get the best outcome for you and your grandchild. If you are in the Chicago area and need legal advice about seeking parenting time or custody of your grandchildren, contact Anderson Boback & Marshall today.
