By: Teresa Simmons
Grandparent’s Rights can be a tricky topic in the legal world. Grandparents play a pivotal role in the formative years of their grandchildren, and being denied visitation rights can have profound consequences, impacting both the child and the grandparent negatively. The presence of positive individuals in a child’s life fosters a sense of security and confidence during their growth. However, under Federal and Illinois law, the right of grandparents to visit and connect with their grandchildren is not guaranteed. The state recognizes that as long as a parent has custody over their children and is deemed fit, it is completely within their discretion to allow their children to connect with or visit their grandparents. While visitation is never guaranteed there are a few exceptions that allow for grandparents and nonparents to petition the court for visitation rights. This article will explore the requirements for petitioning for valuable visiting time with grandchildren and examine the factors that the court considers when determining whether granting visitation rights would be in the best interest of the child.
What Do Grandparent’s Rights Include?
Typically, parents have the authority to decide who their children spend time with. However, under Illinois Law, there are some instances where the Court may provide discretion. Grandparents may petition Illinois Courts for electronic communication and visitation with their grandchildren if the child is at least one year old and the grandparent can show that not seeing their grandchild causes undue harm to the child. Electronic communication involves periods when the child is not physically in the grandparent’s custody, including phone calls, emails, text messaging, video conferencing, or any other tools facilitating communication.[1] Visitation, on the other hand, involves any in-person time spent with the grandchild. It is crucial to distinguish that petitioning for visitation and communication is not the same as seeking custody of the grandchild. In Illinois, custody is referred to as “parental rights,” and requires a distinct set of criteria to be established.
Requirements to File a Petition for Visitation:
In Illinois, there is a presumption that a “fit” parent’s decision to deny visiting rights to a child’s grandparents is not detrimental to the child’s mental, physical, or emotional health.[2] The burden falls on the grandparent to file a Petition to demonstrate that the parent’s refusal of visitation has resulted in undue harm to the child. A grandparent must show that there has been an unreasonable denial of visitation by the child’s parent, coupled with one of the following[3] specific circumstances:
- If the other parent of the child is deceased or has been missing for at least 90 days.
- If the parent of the child is incompetent.
- If the parent has been incarcerated in jail or prison for a period over 90 days.
- If the child’s parents are separated or divorced and at least one of the parents does not object to the grandparent having visitation with the child.
- If the parents are unmarried but a child-parent relationship has been legally established with respect to the parent who is related to the grandparent.
Clarissa’s Story:
There are many factors that the Court considers when determining if a grandparent should be granted visitation with their grandchildren. Let’s consider Clarissa’s situation.
Clarissa has two grandchildren who are four and nine years old. Clarissa had a strong bond with her daughter but faced challenges in her relationship with her son-in-law, Victor. Clarissa has concerns about Victor’s drinking problem, noting instances where he appeared under the influence and occasionally exhibited aggression towards the children during her visits. Whenever Clarissa commented on her son-in-law’s behavior the two got into heated arguments that left Clarissa in tears.
Tragically, Clarissa’s daughter passed away five months ago, and during this period, Victor left the children in Clarissa’s care. Upon his return, Victor has denied Clarissa access to her grandchildren. Clarissa is mourning not only the loss of her daughter but now the inability to see her grandchildren. She knows Victor loves her grandchildren and despite his bad habits, she knows he is not incompetent. However, Clarissa played a vital role in their lives, assisting with school pickups, weekend care, and hosting regular family dinners. Additionally, her grandchildren sometimes sneak away to call Clarissa and tell her how much they miss her.
Now, yearning for time with her grandchildren, Clarissa contemplates whether her case is strong enough to petition the court for visitation. In Illinois, if it can be proven that there has been an unreasonable denial of visitation by the child’s parent, and this has causing undue harm to the child, the Court will consider a range of factors.
Factors Considered by the Court in Granting Visitation Rights
The court takes several factors[4] into account when determining whether visitation should be granted:
- Child’s Wishes: The Court considers the child’s preferences, taking into account their maturity and ability to express desires.
- Mental and Physical Health: Examination of the mental and physical health of both the child and the filing grandparent.
- Relationship Quality: Assessment of the length and quality of the relationship between the child and the grandparent.
- Good Faith: Evaluation of the good faith exhibited by both the parent denying visitation and the grandparent seeking visitation.
- Requested Visitation Time: Consideration of the amount of time the grandparent is seeking for visitation and its potential impact on the child’s routine.
- Harm to the Child: Evaluation of any factor indicating that the loss of the grandparent relationship has caused undue harm to the child.
Additionally, the Court examines the grandparent’s past contact with the child:
- Residence History: Whether the child lived with the grandparent for at least 6 consecutive months, with or without a parent present.
- Frequent Contact: Whether the child has had frequent and regular contact or visitation with the grandparent for at least 12 consecutive months.
- Caretaker Role: Whether the grandparent served as the primary caretaker of the child for at least 6 consecutive months.
In Clarissa’s situation, it appears she may be unreasonably denied visitation by her son-in-law. Applying the above factors, the Court would likely recognize Clarissa’s consistent and regular contact with the children, both before and after her daughter’s passing. It would assess the potential impact of losing the relationship with Clarissa on the children and examine the reasons provided by her son-in-law for the denial. Clarissa seems to have a compelling case for filing a Petition for Visitation, and the Court’s discretion will ultimately decide if these reasons justify her receiving visitation.
If you find yourself in a situation similar to Clarissa’s and believe you are unreasonably denied visitation by your grandchildren’s parent, you must determine if filing a Petition for Visitation is the right course of action. While involving the Court in your life is a challenging and potentially lengthy process, spending time with your grandchildren is crucial, and you deserve to be part of their lives. If you believe this process may be right for your family, call or email our office to discuss your situation and find the best option for you.
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[1] IMDMA 750 ILCS 5/602.9 (a)(1)
[2] IMDMA 750 ILCS 5/602.9 (b)(4)