The law doesn’t always operate the way people anticipate, and sometimes its statutes fly in the face of what seems natural to them—this rings true for grandparents visitation rights.
Most grandparents greatly value the bonds they share with their grandchildren, counting them on the same level of importance as those they share with their own children. For this reason, many grandparents in Illinois are surprised to find they don’t have automatic legal grandparent visitation rights with their grandchildren.
The issue of grandparents visitation rights is often confronted in the case of a divorce. An ex-spouse may restrict visitation rights for their child, thus, affecting the grandparents rights. Other times, a grandparent’s own child may decide to restrict access to the grandchild. Cases such as these could force grandparents to fight for visitation rights if they want to maintain a relationship with their grandchild.
Do Grandparents Have a Legal Right to Visitation Time with Their Grandchildren?
The issue of grandparents visitation rights has been something of a moving target over the last few decades, and laws differ between states.
As the law stands in Illinois, grandparents do not possess an automatic legal right to grandchild visitation because such a law infringes on the natural parents’ basic right to “make decisions concerning the care, custody, and control of their children without unwarranted statute intrusion.” (Decided in the case Wickham v. Byrne, 2002)
Illinois has followed a statute that does not presume visitation time for grandparents, but gives them the opportunity to appeal to the court for visitation. They must present a case that compels a judge to believe it is in the best interest of the child to have regular visitation with his or her grandparents, among other factors.
To even bring a case for visitation, a grandparent must prove that they have been unreasonably denied visitation of their grandchild. In this way, grandparents can’t “preemptively” secure visitation rights for the sake of having court-mandated contact with their grandchild.
When Might a Grandparent Be Granted Legal Visitation Rights in Illinois?
Under the law — and this is where many people become upset — the inherent value of a child maintaining a connection with his or her grandparent is not compelling enough to demand legal protection.
That is the reason grandparents must bring their cases to court to gain its permission to visit with their grandchildren. Especially in the situation of divorce, judges will grant grandparent visitation rights if appropriate conditions exist.
Courts will not grant grandparent visitation rights if both parents object to the visitation, if the child’s parents are married or if they live together.
Judges will consider granting grandparent visitation rights if one of the following situations exists:
- One of the child’s parents is confirmed as unfit or incompetent
- One of the child’s parents has been in jail or prison for 90 days or longer
- One of the child’s parents is deceased or has been absent for at least 90 days
- The parents are divorced, and at least one parent agrees to the visitation of the grandparents
If one of these situations exists, grandparents may pursue a case for visitation rights. They now must provide evidence and present an argument that offers specific reasons why they should be allowed visitation with their grandchild.
What Factors Are Considered for Grandparents Visitation Rights in Illinois?
This responsibility placed on grandparents to develop their case is called the “burden of proof.” Grandparents have the burden of proving it is in the best interest of the child to have regular visits with them.
To make a decision about grandparents visitation rights, family court judges consider a number of factors, including:
- The child’s preference for such visits, 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 six months, with or without the parent
- Whether the grandparent acted as a primary caretaker of the child for at least six months
- Whether the grandparent previously had regular visitation with the child for at least 12 months
- Any factor demonstrating that a loss of the grandparent relationship would harm the child’s mental, physical or emotional health
Contact Sterk Family Law to Learn More About Grandparents Rights in Illinois
If you have questions about grandparent’s visitation rights in Illinois, fill out the form below or call today.
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