Visitation Rights of Grandparents in Illinois

Visitation rights are rights which are granted to a non-custodial parent in situations which involve legal separation and divorce and child custody. Typically, child visitation rights are outlined in a child visitation agreement, also called a child visitation schedule.

When making child visitation determinations, a court will use the child’s best interest standard. Other factors a court may examine can include:

• The age and overall well being of the child;
• The location of each parent;
• The employment history of each parent;
• The child’s living preferences, if they are old enough to state it; and
• Each parent’s daily schedule and work schedule.

Grandparents may also have rights when it comes to child visitation. These rights, however, are not nearly as extensive as those given to the child’s parents.

When determining whether to grant visitation rights to grandparents, a court may examine the following factors:

• The distance between the parents’ residence and the grandparents’ residence;
• The lifestyle of the grandparents, including whether or not they are involved in alcohol or drug abuse;
• Whether the child desires to visit with their grandparents;
• How attached the child is to their grandparents; and
• Whether the parents have refused to allow the child to have visitation with their grandparents.

The laws governing grandparent visitation rights vary widely from state to state. It is assumed that maintaining a relationship and contact with grandparents is in a child’s best interest. In many cases, a court will award grandparent visitation rights if the parent has refused to allow the grandparent to visit the child without good reason.

In the majority of states, grandparents have limited rights to visitation with their grandchildren, regardless of whether the marriage of the parents has been legally dissolved.

As a general rule, the law states that grandparents do not have a natural right to visitation. In many cases, grandparents who have been granted visitation must do so under the supervision of the individual who has been granted custody of the child.

Grandparents’ rights in Illinois are limited, especially if the child’s parents are divorced. A grandparent who would like to request visitation may file a petition with the court after the child turns 1 year old.

A court in Illinois may grant visitation to grandparents if:

• One of the parents is determined to be unfit or incompetent;
• One of the parents is incarcerated for a term of 3 months or more;
• One of the parents is deceased or has been absent for 3 months or more;
• The parents are divorced and one of the parents agrees to the visitation; or
• The parents are not married and do not reside in the same home.

Similar to visitation laws for parents, the most important factor is the best interest of the child. This may be related to the preference of the child, the health of the grandparents and the child, as well as any potential negative effects of allowing the visitation.

What is the Balancing Test?

Prior to the court granting visitation rights to grandparents in Illinois over the objection of a parent, the court will apply a balancing test. As noted above, grandparents have limited legal rights to visitation with grandchildren in Illinois.

The test requires two requirements to be satisfied before the court will grant visitation, which are discussed below.

What are the Thresholds to Apply the Balancing Test?

The two requirements which must be met for a grandparent to obtain visitation in Illinois include:

• The child is at least 1 year of age;
• At least one of the following conditions exists:
  • One of the parents is dead or has been missing for at least 3 months;
  • One of the parents has been declared incompetent;
  • One parent has been incarcerated for 3 months prior to filing for grandparent visitation rights;
  • The parents are divorced and at least one does not object to the grandparent visitation; or
  • The child was born to unmarried parents and they do not reside together. It is important to note that for paternal grandparents, paternity must be established.

Once these two thresholds are satisfied, the court will determine whether or not visitation is in the best interest of the child. To do this, the court will consider the following factors:

• The child’s preference;
• The grandparents’ prior relationship with the child;
• The grandparent’s mental and physical health;
• The child’s mental and physical health;
• Whether the child lived with the grandparents for at least 6 consecutive months;
• If the grandparents seek visitation in good faith; and
• The amount of visitation which is requested.

Is there an Exception for Termination of Parental Rights?

Yes, there is an exception for the termination of parental rights. If the parental rights of both parents have been terminated by a court order of an adoption, the grandparents then lose all visitation rights.

This is because the court is trying to prevent unlawful visitation by a parent. A grandparent may use their visitation time to permit a parent who has lost their parental rights to visit the child as well.

What is the Process for a Grandparent to Obtain Visitation Rights in Illinois?

As previously noted, if a grandparent wishes to obtain visitation rights with their grandchild, they are required to file a petition in court. The grandparent who is seeking visitation rights must show that the grandchild’s quality of life is negatively affected by the absence of a relationship with their grandparents.

When a grandparent is submitting a petition for visitation, they must show that spending quality time together is vital to the child’s emotional and physical well being. This may be affected by numerous factors, including, but not limited to:

• The child’s preference, if they are mature enough to state an opinion;
• The mental and physical health of the grandparents;
• The quality and length of the previous relationship between the grandchild and grandparents;
• The reasons the grandparents are filing the petition;
• The reasons the parents denied visitation;
• The amount of visitation which is requested and how that may impact the child;
• Whether the child resided with the grandparents for at least 6 months, regardless of whether the parent lived there as well;
• Whether the grandparent acted as a primary caretaker for at least 6 months;
• Whether the grandparent had previous regular visitation with the child for at least 12 months; and
• Any factor which demonstrates that the loss of the grandparent relationship would harm the emotional, physical, or mental health of the child.

Even if grandparents successfully receive court-ordered visitation, those rights may be terminated if the parents are required to give custody to a separate party other than a foster care provider or the Illinois Department of Children and Family Services.

For example, if another family adopts the child, the grandparents do not necessarily have visitation rights, even if those visitation was already established in court. Any visitation order which was entered prior to the adoption will be terminated once the adoption is finalized.

Should I Consult an Attorney?

Yes, it is essential to consult with an Illinois child visitation rights lawyer if you are a grandparent who wants to obtain visitation with your grandchild. Your attorney can advise you regarding Illinois law, determine your eligibility to obtain grandparent visitation rights, and help you file your petition in a court.