Fathers’ Rights to Child Custody

Fathers’ Rights to Child Custody

By M. Scott Gordon

When parents in the Chicago area decide to get divorced, child custody issues can loom large. Indeed, child custody battles can be very contentious, and it’s important to know your rights when it comes to custody and visitation.  Many people believe that women often are favored as sole custodians of their children, but it’s important to know that fathers have rights to custody in a divorce case.  Indeed, fathers throughout Chicago have successfully petitioned for joint custody and sole custody of their children in a variety of situations.

How will the court look at a father who seeks custody of his children?  As in all other custody cases, the court will seek to determine what is in the best interests of the child.  Custody petitions can be complicated, and you should always talk to an experienced Chicago custody attorney about your situation.  

Fathers Seeking Joint and Sole Custody

For fathers who are planning to seek custody of their children, it’s important to understand how Illinois law looks at custody issues.  In general, custody refers to the physical and legal control of your child, and two different types exist:

• Joint custody: if you’re a father in the Chicago area and you believe both you and your spouse should share custody of your child or children, you’ll likely want to consider seeking joint custody.  Under the law, joint custody refers to a custody arrangement where both parents are required to cooperate with one another and consult about serious decisions involving their children’s care and well-being. 
• Sole custody: many fathers seek sole custody of their children, which is a custody arrangement in which only one parent (the father with custody, for instance) has the legal right to make decisions about his child’s care and well-being.

While most of us assume that divorce and custody matters go hand-in-hand, in many cases, custody isn’t part of a divorce proceeding.  Indeed, in situations where parents were never married, fathers can still seek joint or sole custody of their children.  

Routes to Proving Paternity and Custody for Fathers

If you’re currently in the process of getting a divorce, Illinois law allows fathers to ask for child custody in their dissolution of marriage petitions.  Similarly, if you and a partner with whom you’re in a civil union have a child together, then you can seek custody in your petition for dissolution of a civil union.

Differently, if you are not married to your child’s mother, the court will need to establish your paternity of the child.  In order to prove paternity, you’ll need file a paternity (or, "Parentage") petition.  Once you’ve established your paternity, you’ll need to file a petition for custody.

If you’re concerned about your child’s safety in the meantime, an experienced Chicago family lawyer can help you with a petition for an order of protection, which can possibly provide a temporary solution.

Contact a Chicago Child Custody Lawyer

If you’re a father in the Chicago area and have concerns about child custody, you should be sure to discuss your case with an experienced Chicago family law attorney.  One of our dedicated family law advocates at M. Scott Gordon & Associates can answer your questions today.

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.