Do Grandparent's Have Visitation Rights in Illinois?

Grandparents play an important role in the raising and upbringing of a child. For this reason, many grandparents are surprised when they don't receive automatic visitation rights with their grandchildren after a divorce. Although the Illinois law of grandparent visitation has opened doors for many, exercising grandparent visitation rights is not a sure thing. In Illinois, when the mother and father are fit parents, the law presumes that the child-rearing decisions are in the child's best interest.  

Grandparents have limited rights and can get visitation with grandchildren under certain narrowly defined circumstances. A grandparent may be granted visitation with grandchildren by showing that one of the parents has unreasonably denied the grandparents access to the child and the decision to deny visitation will harm the child's mental, physical, or emotional health. Illinois laws address this issue in the Marriage and Dissolution of Marriage Act. 

What is the Current Status of Grandparent Visitation?

The current Illinois statute states:

“There is a rebuttable presumption that a fit parent's actions and decisions regarding grandparent, sibling, or step-parent visitation are not harmful to the child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation will cause undue harm to the child's mental, physical, or emotional health.”

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.” (Wickham v. Byrne, 2002)

Granting Visitation

Judges will consider granting grandparent visitation rights if one of the following situations exist:

• One of the child's parents is confirmed 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 dead or missing for at least 90 days;
• The parents are divorced, and at least one parent agrees to the visitation of the grandparents; or 
• The child was born to unmarried parents who are not living together, but paternity is established. 

After one of these situations is presented, the burden of proof is on the grandparents to prove that it is in the best interest of the child to have regular visits with them. This means that grandparents must present evidence and an argument that shows why they should be allowed to have visitation rights with their grandchildren. 

In determining whether to grant visitation, a court will consider a number of factors, including:

• The child's wishes, if the child is mature enough and able to state a reasoned opinion as to visitation;
• The child's mental and physical health;
• 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 or contact with the child for at least 12 months; or
• Any factor demonstrating that a loss of the grandparent relationship would harm the child's mental, physical or emotional health. 

If you have been denied your right to see your grandchild, you should speak with an attorney at Lafata Law. Our goal at Lafata Law is to ensure that you, as a grandparent, can maintain a close and loving relationship with your grandchild. To schedule a consultation, call our office at 630-481-6633.