Grandparents’ Visitation Rights in Illinois

Grandparents’ Visitation Rights in Illinois

By M. Scott Gordon

A child’s relationship with a grandparent can be a rewarding and enriching experience for both the grandchild and the grandparent. However, in some cases, a parent may feel the need to restrict the relationship due to various reasons. It may be because the parent feels the grandparents are not a safe or positive influence on the child, or because the parent has a bad relationship with the grandparents. Whatever the reason, some grandparents may decide to pursue access to their grandchildren through legal means.

Can Grandparents Be Granted Visitation or Custody?

Generally, Illinois grandparents may seek visitation rights, and in some limited circumstances, custody of grandchildren. There is no automatic right to either grandparent visitation rights or custody. A judge has to make a case by case determination based on guidance from the Illinois Marriage and Dissolution of Marriage Act.

The U.S. Supreme Court in Troxel v. Granville recognized a fit parent’s parenting decisions, including a decision to restrict or deny a grandparent’s ability to see a grandchild. Similarly, the Illinois law that allows grandparents to petition for visitation sets certain restrictions on when grandparents can seek visitation. Grandparents are allowed to ask for visitation if there is an unreasonable denial of visitation by a parent AND of the following conditions are fulfilled:

1.      The child’s other parent is deceased or has been missing for 3 months or longer;

2.      One of the parents is legally incompetent;

3.      One of the parents has been incarcerated for 3 months or longer right before the petition for visitation is filed;

4.      The parents are getting divorced or separated, and at least one parent does not object to the grandparents having visitation rights; or

5.      The child is born to an unmarried couple and the parents are not living together; in this case, however, for a paternal grandparent to request visitation, the child’s paternity has to have been established by a court.

Even if the grandparent can satisfy the requirements above, there is still a presumption that the child’s parent is making the best decision for the child. The grandparent has to show that the parent’s decision to deny visitation is harmful to the child’s mental, physical, or emotional health. This may be easier to show if the grandparent had a prior relationship with the child, which was later restricted by the parent.

In deciding whether or not to grant visitation, the court considers the following:

1.      The child’s preference – if the child is old enough to choose;

2.      The mental and physical health of both the child and grandparents;

3.      The length and quality of the previous grandparent-grandchild relationship;

4.      The good faith of both the grandparent asking for visitation, and the parent denying it;

5.      Whether or not the grandparent was the child’s primary caregiver for at least 6 months;

6.      Any other factors that tend to show that denying visitation will harm the child physically, mentally and emotionally; and

7.      Whether the grandparent was the child’s primary caregiver for 6 consecutive months or more.

A grandparent who is granted visitation does not have to be granted overnight or even unsupervised visitation. Additionally, if the parent who is related to the grandparent is not allowed to see the child, or is restricted in the way he or she may interact with the child, the grandparent cannot use his or her visitation to get around these restrictions. If he or she does, visitation rights could be lost.

Contact a Chicago Family Law Attorney

If you are a grandparent who would like to see a grandchild and the parents are refusing visitation, you may be able to petition the court for visitation. Contact the experienced family law attorneys at M. Scott Gordon & Associates for a consultation.