November 25, 2016

Grandparent Rights to Visitation with Grandchildren

Child Custody

Parents and children are not the only people affected by divorce. Grandparents will also experience changes and may then wonder what their rights are in getting visitation with their grandchildren. Grandparents may have rights in certain cases, but they are not as well-defined as parental rights and they are not guaranteed. For that reason, grandparents may wish to contact a DuPage County family law attorney for a consultation on what options are available.

Under Illinois family law, grandparents do not typically have a right to visitation with grandchildren. So long as the parent is fit, he or she has a constitutionally protected interest to raise his or her children. This means that parents – and not judges – have the right to decide who will be in their child’s lives. Current law puts the burden on grandparents to prove in court that “the parent’s actions and decisions regarding visitation will cause undue harm to the child’s mental, physical, or emotional health.”  750 ILCS 5/602.9(b)(4).

Even assuming that a grandparent can meet this burden, grandparent visitation is only available in limited circumstances. First, the child must be at least one-year-old, and there must be unreasonable denial of visitation by a parent that causes mental, physical, or emotional harm to the child.

Second, there must be one of the following circumstances present:

  • The parents have been granted a divorce, have a divorce pending, or there is a pending court proceeding involving parental responsibilities or visitation and at least one parent does not object to the grandparent having visitation with the child;
  • The child is born to parents who are not married to each other, the parents are not living together, and parentage has been established by a court;
  • The child’s other parent is deceased or has been missing for at least 90 days; or
  • A parent has been incarcerated in jail or prison for a period in excess of 90 days immediately prior to the filing of the petition.

In determining if visitation is proper, a court will look at numerous factors such as: the wishes of the child, the length and quality of the relationship between grandparents and grandchildren, the good faith of the person denying the visitation, the amount of visitation requested, and the mental and physical health of the grandparent. 750 ILCS 602.9(b)(5).

While these are the general rules courts follow, there are other special circumstances and other considerations that could help or hurt a grandparent’s visitation case. If you are a grandparent interested in getting visitation with your grandchildren, an experienced DuPage County family law attorney at Mulyk Laho Law, LLC will speak with you for free in an initial consultation.