Grandparents' Rights

GRANDPARENTS’ RIGHTS

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Grandparents’ “Custody”

Illinois law no longer uses the term “custody” to refer to children. It is now called “parenting time.” The courts strongly favor having children raised by their biological parents. So, if one parent is incapable of raising a child, the default is for the other parent to raise that child. Only if both parents are incapable of raising a child will a family member succeed in having residential parenting and decision-making rights as to the child.

Grandparents’ Rights to Parenting Time

In Illinois, as long as the parents are fit and have established custody over the children, it is completely in their discretion whether or not to allow a grandparent to visit. Illinois law almost always favors the parent’s wishes in raising their child. Unfortunately, that can mean that if parents choose to cut off the relationship between you and your grandchildren, there is little you can do. The Court presumes that parents act in their child’s best interest in denying a grandparent time with their child. The law still allows for non-parents to petition the Court for visitation rights, but the burden of proof is very high.

Only the following people have standing to petition the court for an order for visitation with a child:

Grandparent
Great-grandparent
Brother or Sister
Stepparent

Generally, grandparents (or the above family members) are given residential parenting or and decision-making rights of a child only if:

The parents willingly give up the child due to extreme financial hardship or other circumstances
The parents are declared unfit because of criminal activity or substance abuse

Proving a parent is unfit or trying to get custody as a non-parent is taken extremely seriously by the court. The court will always require proof and weigh it against the best interest of the child.

Generally, to obtain parenting time rights in Illinois, grandparents must meet the following requirements:

Show that they have been unreasonably denied parenting time by a parent of the grandchild

Show that one of the following statements is true:

A parent is incompetent.
A parent is deceased or has been missing for at least three months.
A parent has been incarcerated for at least three months.
The child’s parents are divorced or legally separated, or there is a pending dissolution or custody proceeding, and at least one parent has no objection.
The child is born out of wedlock and the parents are not living together.

The court will then review:

The child’s preference
The grandparents’ intentions in seeking parenting time
Whether the denial of parenting time has been in good faith
The closeness of the relationship between the child and the grandparents
Whether the time requested might have a damaging effect on the child’s regular activities
Whether the child lived with the grandparent, or the grandparent was the primary caretaker of the child for at least six consecutive months
The frequency of contact for at least one year
The mental and physical health of the child
The physical and mental well-being of the grandparents

Grandparents who file a petition for custody or parenting time will be required to show that they have more than just a biological relationship with the child, but a strong bond and nurturing parent-like relationship. Even on these grounds, a grandparent would still conclusively have to prove that a lack of visitation would cause physical, mental, or emotional harm to the child. Also, unless the grandparents had a previous relationship with the children prior to the divorce, a Court would probably not grant visitation. In the event a grandparent is trying to petition for visitation rights, they must show that a relationship existed with the children before a divorce. In other words, a court may help restore an existing relationship but will not help build a new one.

It is exceptionally painful for grandparents not to be able to see their grandchildren. These matters must often be litigated if the parent cannot be convinced that the children should get to know their extended family. These cases must be prepared and presented aggressively and persuasively, and I have great experience doing so. And, although these are difficult cases to win, I have been able to obtain significant grandparenting time for many clients over the years.