Questions surrounding the legal rights of grandparents in Illinois are commonplace in our practice. We often hear grandparents ask if they can get “visitation rights” or if there is a possibility of gaining “custody” of their grandchild due to unforeseen circumstances. The following are the most common topics when it comes to the legal rights of grandparents.
As a Grandparent, Can I Seek Custody or Allocation of Parental Responsibilities?
Remember that a few years back Illinois stopped using terms such as “custody” and “visitation” in cases involving the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Instead, you now hear people refer to custody as “decision-making responsibilities” and visitation as “parenting time.” Parental responsibilities are broken down into two categories: parenting time and decision-making.
One of the Child’s Parents is Deceased
Generally speaking, grandparents desiring custody cannot petition to be allocated parental responsibilities. However, if one of the child’s parents is deceased, then the grandparent on that side (deceased parent) may be able to petition the court to be allocated parental responsibilities. In this situation, the petitioning grandparent could be the deceased party’s parent or step-parent. The grandparent can file a petition to be allocated parenting time or decision-making responsibilities so long as one or more of the following existed at the time the parent passed away:
(A) the surviving parent had been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts;
(B) the surviving parent was in State or federal custody; or
(C) the surviving parent had:
- received supervision for or been convicted of any violation of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, 12C-5, 12C-10, 12C-35, 12C-40, 12C-45, 18-6, 19-6, or Article 12 of the Criminal Code of 1961 or the Criminal Code of 2012 directed towards the deceased parent or the child; or
- received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.
You can see that in the above-mentioned situations the surviving parent is almost completely out of the picture. The surviving parent is in jail or prison. The surviving parent essentially abandoned the spouse and child. The surviving parent violated the law in a way that directly impacted the deceased parent and or child.
What about when the child’s parents just will not let you see your grandchild?
We often hear from grandparents that want to see their children more often. Maybe there is a disagreement between the parent and the grandparent? Maybe the child’s parents are going through a divorce? What can be done in these situations?
The Good News: Illinois has a statute that addresses “visitation” by certain non-parents.
In Illinois, the law no longer uses terms child custody and visitation. For “Visitation”- the new law is found in Section 602.9 of the IMDMA. However, it makes sense for it to be used in this section of the Act. This is the section that can be used to gain access to grandchildren by their grandparents. This Section can also be used to address visitation requests by a child’s sibling (including half and step), step-parent, or great-grandparent.
The Bad News: Parents are presumed to be fit. Parents have the right to limit or restrict a family member’s access to their child.
A non-parent, as mentioned above, can file a petition with the court to request visitation with a child IF the child is at least one-year-old AND if one of the following applies:
(1) the child’s other parent is deceased or has been missing for at least 90 days;
(2) a parent of the child is incompetent as a matter of law;
(3) a parent has been incarcerated in jail or prison for a period in excess of 90 days immediately prior to the filing of the petition;
(4) the child’s parents have been granted a dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child and at least one parent does not object to the grandparent having visitation with the child. (The visitation of the grandparent must not diminish the parenting time of the parent who is not related to the grandparent.); OR
(5) the child is born to parents who are not married to each other, the parents are not living together, and the petitioner is a grandparent and PARENTAGE HAS BEEN ESTABLISHED by a court of competent jurisdiction.
Filing a Petition in a Pending Divorce or any Child-Related Action
The grandparent can also file the petition as part of a divorce or pending dissolution action or any action that involves the allocation of parental responsibilities regarding the child (child custody). The petition would be filed in the same county where there is pending litigation involving the minor child or in the county where the child resides.
A non-parent, however, may not file a petition for visitation if there is a petition pending:
- pursuant to Section 2-13 of the Juvenile Court Act of 1987 or
- for an unrelated person to adopt the child.
- A non-parent cannot petition for visitation if the child has been relinquished pursuant to the Abandoned Newborn Infant Protection Act. A non-parent cannot petition for visitation if the parents have voluntarily surrendered the child (except in situations where the child was surrendered to the Department of Children and Family Services or a foster care facility). Likewise, a non-parent cannot petition for visitation if the child has already been adopted by an unrelated person.
Thinking about filing a petition for visitation for your Grandchild?
The court can grant a grandparent reasonable access to the grandchild, which includes visitation and electronic communication (phone, email, text, video chat, etc.) but that does not mean that the court has to give overnight or possessory visitation.
BEFORE YOU FILE FOR VISITATION WITH YOUR GRANDCHILD REMEMBER THAT IN ADDITION TO THE ABOVE-MENTIONED REQUIREMENTS YOU MUST BE ABLE TO SHOW THAT THE CHILD’S PARENT HAS UNREASONABLY DENIED YOU VISITATION AND THAT THE DENIAL HAS CAUSED THE CHILD UNDUE MENTAL, PHYSICAL, OR EMOTIONAL HARM.
As previously mentioned, the law presumes that the child’s parents are fit and that their actions and decisions regarding visitation with a grandparent are not harmful to the child. However, this presumption is rebuttable. That means you are able to overcome the presumption with proof. The burden to prove that the child is being harmed is on the grandparent who is requesting visitation.
Just like in most other sections of the Illinois family law, the court must consider a number of factors when determining whether to grant a grandparent visitation with a child over the parents’ wishes. The factors the court takes into consideration are :
- the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to visitation;
- the mental and physical health of the child;
- the mental and physical health of the grandparent, great-grandparent, sibling, or step-parent;
- the length and quality of the prior relationship between the child and the grandparent, great-grandparent, sibling, or step-parent;
- the good faith of the party in filing the petition;
- the good faith of the person denying visitation;
- the quantity of the visitation time requested and the potential adverse impact that visitation would have on the child’s customary activities;
- any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to unduly harm the child’s mental, physical, or emotional health; and
- whether visitation can be structured in a way to minimize the child’s exposure to conflicts between the adults.
A few more factors the court will need to consider for Grandparent Rights:
- Did the child reside with the grandparent for at least 6 consecutive months with or without a parent present?
- Did the child have frequent and regular contact or visitation with the petitioner for at least 12 consecutive months?
- Was the grandparent the primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month period immediately preceding the commencement of the proceeding?
Adoption or Termination of Parental Rights and Grandparent Rights
If you are a grandparent and you have been granted visitation in a court order pursuant to Section 602.9 remember that your rights will automatically terminate if an order is entered that terminates the child’s parents’ rights or if the child is adopted by an unrelated person. When the child is adopted by a family member then you will have the standing to petition for visitation even after the adoption.
If you are a grandparent wanting to take legal steps to gain visitation or parental responsibility for your grandchild, we can help. Contact Anderson & Boback to schedule a confidential consultation related to the legal rights of grandparents in Illinois.