Do Grandparents Have Visitation Rights in Illinois?

A look at grandparent visitation laws in Illinois.

By , Attorney

Often, parents of younger children welcome the care, love, and assistance a grandparent can provide. Nevertheless, when relationships between parents sour, a grandparent's time with a grandchild may change as well. Too often, parents let their own disagreements interfere with a grandparent-grandchild relationship. Other times, a parent may feel that grandparent visitation is harmful to a child. In either situation, a grandparent bears the burden of proving that visitation is necessary to a child's best interests and emotional well-being. This article provides an overview of grandparent visitation in Illinois. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Parents have fundamental rights to rear and raise their children as they see fit. Generally, the government and third parties, including grandparents, can't interfere with a parent's rights unless the child is being harmed.

There isn't a federal law governing grandparent rights. Instead, each state has enacted its own laws regarding grandparent visitation. The landmark Supreme Court case Troxel v. Granville set the standard for state grandparent visitation laws. Specifically, Troxel struck down a Washington state statute because it ignored a parent's reasons for opposing visitation. There's a rebuttable presumption that a parent is acting in a child's best interests by prohibiting visits. A grandparent seeking visitation must prove the opposite—that spending time together is essential to a child's physical and emotional well-being. Even then, grandparent visitation can't interfere with a parent's one-on-one time with a child.

Grandparent Visitation in Illinois

Grandparents who want court-ordered time with their grandchildren may file a petition (written request) asking for visits once a child turns one. Before a court will grant this request, the grandparent must show that the parents' denial of visitation is unreasonable and that it causes physical or emotional harm to the child. One of the following factors must also be present for a judge to order visitation:

  • the child's parent is deceased or has been missing for at least 90 days
  • the child's parent is legally incompetent to care for the child
  • the child's parent has been in jail for at least 90 days
  • the child's parents have divorced or legally separated and at least one parent doesn't object to grandparent visitation, or
  • the child's parents are unmarried and not living together.

Grandparents bear the burden of proof in showing that a parent is not acting in a child's best interests by denying visitation. For example, in one Illinois case a paternal grandmother was denied visits because she didn't meet her burden of proof. The child's parents were never married, and the child's father was in prison at the time the child was born. The paternal grandmother had established a strong bond with her grandchild before visitation was cut off. However, the court refused to order visits because the grandmother couldn't demonstrate that her grandchild was emotionally or physically harmed by the lack of visitation.

In cases where grandparents meet their burden of proof, a court still needs to consider several factors to determine whether visitation is appropriate and if so, how much. These factors include:

  • the child's preference, if the child is mature enough to state a reasoned opinion
  • the grandparent's mental and physical health
  • the length and quality of the prior grandparent-grandchild relationship
  • the grandparent's reasons for filing the petition
  • the parents' reasons for denying visitation
  • the amount of visitation requested and any impact on the child
  • whether the child lived with the grandparent for at least 6 months—with or without the parent
  • whether the grandparent acted as a primary caretaker of the child for at least 6 months
  • whether the grandparent previously had regular visitation with the child for at least 12 months, and
  • any factor demonstrating that a loss of the grandparent relationship would harm the child's mental, physical or emotional health.

In another Illinois case, maternal grandparents were awarded visitation against a father's wishes. The grandparents had cared for the children full-time for 18 months, shortly after the children's mother died in a car accident. During this time period, the children's father was recovering from injuries sustained in the car accident. He later remarried and took the children with him to New Mexico, cutting off all contact with the grandparents. Because the grandparents had a unique bond with the children, the court determined that severing the grandparent relationship would harm the children.

When Can Grandparents Obtain Custody of a Grandchild?

There may be some circumstances where a grandparent may be better financially or emotionally equipped to meet a child's needs than a parent. However, that's not enough for a grandparent to obtain custody. In Illinois, grandparents can only request custody if:

  • the child's parents have voluntarily relinquished the child, or
  • the child's parents have been deemed unfit.

In one Illinois case, a court denied custody to a paternal grandmother and stepgrandfather. The child's parents were unmarried, and the grandparents provided daily child care while the parents worked. At one point, the child's mother asked the grandparents to care for the child temporarily while she relocated. The grandparents also put the child on their health insurance plan. But the court determined that the parents had never relinquished their child, so the grandparents were prohibited from seeking custody.

Adoption and Grandparents' Rights

In most situations, adoption severs ties between a child and biological family members. Grandparents are no exception to this rule. Any visitation orders entered before a child's adoption will automatically terminate when an adoption is finalized.

Even in the case of a stepparent adoption, grandparent visitation isn't automatic. A grandparent has standing to bring a visitation petition in the case of a stepparent adoption, but the grandparent must still demonstrate that the lack of visitation would harm the child. In many cases, it's difficult for a grandparent to meet that burden.

Grandparents have a unique place in a child's life. Too often, hard feelings or divorce causes one parent to cut grandparents out of the picture. As a grandparent, you have legal recourse if you want to still be a part of your grandchild's life. If you have additional questions about grandparent visitation or custody rights in Illinois, contact a local family law attorney for advice.

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