What Rights Do Grandparents Have Seeking Custody?

Grandparents often inquire about custody and tell  me that their son or daughter is incapable of parenting their child. Since they consider their offspring unfit, grandparents seek to obtain custody of their grandchildren.  Or, if their own is not involved, and they do not approve of the other biological parent, grandparents, believing they are the better party in raising the child, seek custody of their grandchild.

Even if the grandchild has lived with them for years, there is still a process called standing, that grandparents must overcome.  Grandparents need “standing” in order to seek custody.

By way of illustration, read the case of Roman and Ellen. They raised their grandson Elliot  for two years, when the mother appeared one day and removed the boy from the grandparent’s care.

On February 4, 2011, the grandparents filed a petition seeking custody of Elliot under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601.  The trial court said the grandparents had to demonstrate that they had physical custody of Elliott because the biological mother, Molly,  had voluntarily and indefinitely relinquished custody.  Without that specific finding, Roman and Ellen would not have “standing”, and their custody petition would not be heard by the court.

At trial, the court heard that Molly was seventeen years old when her son was born. She did not have enough money to take care of him and asked Roman and Ellen to provide a home for him.  Molly worked on getting her GED degree and saw her son sixteen times over the next two years.  Her life seemed to stabilize and she moved in with a boyfriend and started having Elliot spend the night at her home.

After one of her visits though, Molly decided that Elliot was not going back to Roman and Ellen’s home.  For three months following Molly’s decision, the grandparents visited Elliot hoping that Molly would change her mind. When she did not, the grandparents filed for custody.

The trial court determined that the grandparents’ conduct during that three-month period demonstrated their acquiescence in Molly’s reasserting physical custody, not merely physical possession, of Elliott. While previously Ellen had directed when Molly would be permitted to see Elliott, after Molly’s retrieval, the grandparents sought Molly’s permission to see Elliott and abided by her decisions. They recognized that Elliott had a home with Molly and returned him there after each visit as directed by Molly. Indeed, Ellen testified that, by the end of the week of November 13, 2010, she realized that Molly would not be returning Elliott to live with grandparents. The Grandparents did nothing to assert any claim to custody until they filed their petition three months after Molly retrieved Elliott. On this record, the grandparents failed to establish that Elliott was “not in the physical custody of one of his parents” (750 ILCS 5/601(b)(2) (West 2010)) on February 4, 2011, when they filed their petition. Accordingly, grandparents lacked standing under section 601(b)(2), and Elliot remained living with his mother.

Timing is very important in these cases. If you have a child living in your care, and no court order exists protecting your rights, please call us.

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