Illinois law recognizes a limited right of grandparents to obtain court-ordered visitation privileges with their grandchildren. However, as in other states, the law also recognizes that parents have a fundamental right to control how their children are raised, and subsequently, who visits their children. Thus, the government allow parents to raise their children as they wish, but with minimal interference. This fundamental right is balanced against the best interest of the child.
Thresholds to Apply Balancing Test
Before a court will apply the balancing test to grant visitation rights to grandparents over the objection of a parent, there are two threshold requirements that must be satisfied.
1. The child must be one year old or older; and
2. At least one of the following conditions be met:
- One of the child’s parent is dead, or has been missing for at least 3 months;
- One of the child’s parents has been declared incompetent;
- A parent has been in jail or prison for the 3 months before filing for the visitation rights of the grandparents;
- The parents of the child are divorced, and at least one of them does not object to visitation by the grandparents; or
- The child was born out of wedlock, and the parents do not live together (and for paternal grandparents, they must prove paternity).
The Balancing Test
- Once the two thresholds are satisfied, the court must determine whether visitation is in the best interest of the child. The court will consider all relevant factors, which include:
- Child’s preference;
- Prior relationship between the child and the grandparents;
- Physical and mental health of the grandparents;
- Physical and mental health of the child;
- Whether the child lived with the grandparents for at least 6 consecutive months;
- Good faith of grandparents to seek visitation; and
- Amount of visitation requested.
Exception: Termination of Parental Rights
If parental rights of both parents are terminated by adoption or court order, then the grandparents subsequently lose all visitation rights whatsoever. The court wants to prevent unlawful visitation by a parent. For example, a grandparent using her visitation time to allow a parent who has lost all parental rights to visit the child as well.
Consulting an Attorney
If you believe you should be allowed to visit your grandchild, then a family law lawyer can help you go to court and obtain those rights.