Illinois law governing grandparent visitation rights
Authored by Jeffery M. Leving
Grandparent visitation is a complex area of Illinois and federal constitutional law.
Illinois statute allows grandparents and great-grandparents to petition the court for in-person and electronic visitation with grandchildren in certain narrowly defined circumstances. A grandparent may be granted court-ordered visitation rights if he or she can show that one of the parents has unreasonably denied the grandparent access to the child and that not having contact with the grandparent “will cause undue harm to the child’s mental, physical, or emotional health.”
Impact of the U.S. Constitution
As background, state legislatures are limited when they write statutes allowing grandparent visitation by the constitutional rights of parents. Therefore, like the current Illinois grandparent visitation statute, grandparents typically must reach a high bar. Despite the constitutional rights of parents, there are legitimate times when denying contact with a grandparent would not be in a particular child’s best interest because it would cause harm or potential harm to the child.
The U.S. Supreme Court in the case of Troxel v. Granville established that parents have a fundamental right based on the federal Constitution’s guaranty to due process of law to make decisions on behalf of their children about “care, custody and control.” Government authorities can only interfere with this constitutional parental right if the interference is meant to prevent harm to the child in question. This history explains why the Illinois grandparent visitation statute has such specific requirements.
Because of this legal complexity, any Illinois grandparent or great-grandparent who seeks visitation with a grandchild should seek legal representation by an experienced family lawyer with grandparent visitation experience.
The Illinois Standards
As stated above, a grandparent petitioning for grandchild visitation must show that the parent denying access is acting unreasonably and that denial of grandparent access will unduly harm the child’s “mental, physical or emotional health.” To bring a petition, the child must be at least one year old and at least one of these must be true:
- The other parent must be either dead or missing.
- One parent is incompetent.
- One parent has been incarcerated for at least 90 days.
- There has been or will be a divorce or legal separation of the parents or similar legal proceeding and at least one of the parents does not object to grandparent visitation, which may not decrease the parenting time of the parent who is not a relative of the grandparent.
- The child was born to unmarried parents who are not living together, but paternity is legally established.
In considering the petition, the judge is directed by law to consider specific factors:
- Did the child live with the grandparent for at least six months?
- Did the child have regular contact with the grandparent for at least 12 months in a row?
- Was the grandparent a “primary caretaker” for at least six consecutive months in the two years before the proceeding started?
- What does the child want, considering maturity and ability to “express reasoned and independent preferences”?
- How is the physical and mental health of the child and grandparent?
- What is the nature of the grandparent-child relationship?
- Are the grandparent and the parent denying visitation both acting in good faith?
- How much access time is requested and would it interfere with the child’s activities?
- Can visitation be structured to minimize the child’s “exposure to conflicts between the adults?
The court shall also consider anything else that shows a denial of grandparent visitation will harm the child.
(Not surprisingly, certain criminal acts of a grandparent will prevent or negatively affect visitation rights.)
The attorneys at The Law Offices of Jeffery M. Leving, Ltd., in downtown Chicago represent grandparents and others facing matters of child visitation and related issues.