A child's relationship with his or her grandparents is often collateral damage in achild custody case, but Illinois law gives you the tools to reverse the damage, or at least minimize it.
Typically, these disputes arise when a former daughter- or son-in-law receives custody of minor children and refuses to allow them to visit their former in-laws. It may also be theoretically possible for grandparents to file an action for visitation against their biological children, although these instances are somewhat rare.
Section 607 of the Illinois Marriage and Dissolution of Marriage Act does not define the visitation period – it simply says that grandparents, great-grandparents, aunts, and uncles may be granted the right to “reasonable” visitation under certain circumstances – but most grandparent petitioners request one weekend per month.
Obtaining visitation rights as a nonparent is somewhat difficult, although certainly not impossible. The first step is to overcome the presumption in Section (a-5)(2) that “a fit parent's actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child's mental, physical, or emotional health.” In other words, the court defers to a parent's decisions in this area unless the petitioner grandparent can show that the denial of visitation is harmful to the children. In reaching its decision, the court will look to the:
- Children's preference,
- Nature of the relationship between grandparents and grandchildren, and
- Intentions of the grandparents (i.e. was the action brought in good faith).
Just as importantly, the court will inquire as to whether the grandparents were the primary caretakers of the grandchildren for at least six months.
Next, the grandparents must show that there has been an “unreasonable” denial of visitation. This term is not defined, so it is up to the judge to determine what behavior is reasonable and what behavior crosses the line.
The Next Step
Once the presumption is overcome and the parent's behavior is deemed unreasonable, the grandparent petitioners must establish one of the following:
- The children's other parent is deceased, incarcerated, or incompetent,
- The petitioners are close blood relatives, or
- One parent does not object to grandparent visitation.
The third reason is the one most commonly advanced in these cases.
To help ensure that your voice is heard in an ongoing or soon-to-develop custody case, contact an experienced family law attorney in Naperville for a confidential consultation. Convenient payment plans are available.