Do Grandparents Have Visitation Rights in Illinois?

Most grandparents love spending time with their grandchildren—and most parents encourage that relationship. In some situations, however, parents may limit or outright deny grandparents the right to visit their grandkids. The grandparents might be able to seek visitation rights in court, but Illinois law doesn't make that easy.

When Can Grandparents Request Visitation Rights in Illinois?

Illinois law sets out strict requirements that grandparents have to meet in order to request visitation with a grandchild. First of all, they must prove that:

• a parent has unreasonably denied visitation, and
• as a result of that denial, the child has experienced undue mental, physical, or emotional harm.

Right out of the gate, grandparents will run into a major hurdle when trying to meet those requirements. That's because the law presumes that a fit parent's actions or decisions regarding grandparent visitation aren't harmful to the child's mental, physical, or emotional health. So it's on the grandparents to prove otherwise.

As if that hurdle wasn't difficult enough, Illinois law sets additional conditions on grandparents' requests for visitation with a child who is at least one year old. Grandparents may file these requests only if:

• the child's other parent is deceased or has been missing for 90 days
• the parents are divorced or legally separated (or a parent is involved in a pending divorce or another legal proceeding dealing with custody or visitation), at least one of the parents doesn't object to visitation by the grandparent, and the visitation wouldn't reduce parenting time for the parent who's not related to the grandparent
• the child is born out of wedlock, the parents aren't living together, and the parent who's related to the grandparent has been legally declared as the child's parent (that is, parenthood has been established), or
• one of the child's parents has been declared legally incompetent or has been has been incarcerated for more than 90 days immediately before the petition for visitation is filed.

(750 Ill. Comp. Stat. § 5/602.9 (2023).)

How to Request Grandparent Visitation in Illinois

In order to start the process of requesting visitation in court, a grandparent must either:

• file a petition with the Illinois circuit court in the county where the child lives, or
• file a petition in an existing divorce proceeding or any other court proceeding that involves custody or visitation issues regarding the child.

After filing the petition, the grandparent must "serve" the court papers (a notice and a copy of the petition) on the child's parent or legal guardian, at least 30 days before any hearing on the petition.

(750 Ill. Comp. Stat. §§ 5/601.2(c), 5/602.9(b)(1) (2023).)

How Do Illinois Judges Decide Whether to Grant Grandparent Visitation?

When judges in Illinois are deciding whether to grant grandparents' requests for visitation rights, they must consider all of the following:

• whether the child lived with the grandparent for at least six consecutive months with or without a parent present
• whether the child had frequent and regular contact or visitation with the grandparent for at least 12 consecutive months
• whether the grandparent was the child's primary caretaker for at least six consecutive months within the two years just before the petition for visitation was filed
• the child's wishes, taking into account the child's maturity and ability to express reasoned and independent preferences about visiting the grandparent
• the child's mental and physical health
• the grandparent's mental and physical health
• the length and quality of the prior relationship between the child and the grandparent
• whether the grandparent is making the request in good faith
• whether the parent has denied visitation in good faith
• how much visitation time the grandparent has requested, and whether it could potentially interfere with the child's customary activities
• whether it's possible to structure grandparent visitation in a way that will minimize the child's exposure to conflicts between the adults, and
• any other circumstances showing that the loss of the relationship between the grandparent and grandchild is likely to unduly harm the child's mental, physical, or emotional health.

Based on these factors, it should be obvious that judges are probably not going to grant visitation to grandparents with a history of crimes or other actions that could be harmful for the child. But the law makes it extra clear that judges must deny visitation to grandparents who've been convicted of child sexual abuse (at least until they've completed a treatment program and are no longer on supervised release) or of murdering the child's parent, sibling, or certain other relatives.

(750 Ill. Comp. Stat. § 5/602.9 (2023).)

Can Grandparents Request Visitation in Illinois After a Grandchild Has Been Adopted?

Any grandparent visitation rights automatically end when a judge issues an order terminating parental rights or granting an adoption (whichever happens first). But there's an exception in Illinois law. If the person adopting the child is a family member listed in Section 1 of the Illinois Adoption Act (which includes step-parents), a grandparent may file a petition requesting visitation. (750 Ill. Comp. Stat. § 5/602.9(b)(6) (2023).)

Modifying Grandparent Visitation Orders

Illinois judges may not modify (change) a grandparent visitation order unless they find that there's been a change in the child's or parent's circumstances, and the modification is necessary to protect the child's mental, physical, or emotional health. The changed circumstances must have happened after the visitation order was issued or must have been unknown (to the judge) at that time.

Also, grandparents may generally not file a modification motion until at least two years after the current order was issue, unless the child's present environment poses a serious danger. But parents may always move to modify grandparent visitation if circumstances have changed and the modification is necessary to promote the child's best interests.

Be aware that if someone files a modification motion for purposes of annoyance or harassment, the judge will order that person to pay the other side's attorney's fees and costs.

(750 Ill. Comp. Stat. § 5/602.9(d) (2023).)

Can Grandparents Seek Custody of Their Grandchildren in Illinois?

The laws on child custody in Illinois allow grandparents to file a petition for custody (known in the state as the "allocation of parental responsibilities") only if the child is not in a parent's physical custody. For example, say a single parent voluntarily transfers custody of a child to live with the grandparents (and the child has no other living parent with custody rights). If the parent later wants the child back, the grandparents could request custody in the Illlinois courts. The judge would decide based on what's in the child's best interests. (750 Ill. Comp. Stat. 5/601.2(b)(2) (2023); In re Custody of Menconi, 453 N.E.2d 835 (Ill. Ct. App. 1983).)

Grandparents might be able to become their grandchild's guardian or other legal custodian in a few other limited situations, including when the parents have had their parental rights terminated, either voluntarily or because of child abuse or neglect.

Getting Help With Grandparent Visitation or Custody

Because of the legal presumption that parents know best, grandparents in Illinois who want to get visitation with the grandkids over a parent's objections will have a difficult road ahead. It's always best if you and the child's parents can resolve your disagreements without heading to court, either on your own or with the help of mediation. But if you can't manage that, a knowledgeable family law attorney should be able to evaluate your situation, explain whether you have a good chance of winning a petition for visitation rights, and—if you decide to move ahead—help you navigate the legal system and gather the right kind of evidence to support your request.