In most child custody cases, the primary focus is understandably on the immediate family, or the parents and children. But there are nearly always secondary caregivers as well, including grandparents. According to the government, it is quite common for grandparents to spend a considerable amount of time with their grandchildren; as a matter of fact, over four million households contain both grandparents and grandchildren.
Unfortunately, after a divorce, weekend sleepovers and other treasured activities are sometimes replaced by weak excuses as to why the children cannot come as scheduled. Often, divorced caregiver parents feel no emotional connection with their former in-laws, and non-custodial parents hesitate to share their parenting time. In other situations, the parents may feel that denying visitation to grandparents is a way to “get back at” their former spouses.
Section 602.9(c) of the Illinois Marriage and Dissolution of Marriage Act directly addresses these situations, and empowers grandparents to legally maintain contact with their grandchildren. To secure visitation rights, which may differ based on the circumstances of the family, the grandparents must prove that there is an “unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child.” When considering this factor, the judge may consider whether or not the child:
- Lived with the grandparent petitioners for at least six months;
- Had “frequent and regular contact or visitation” with the petitioners for at least 12 months; or
- Was left with the grandparents as the “primary caretaker” for at least six consecutive months during the preceding two years.
In addition, at least one of the following five factors must be present:
- A parent is deceased or has been missing for at least 90 days;
- At least one parent does not object to grandparent visitation, and the requested time does not diminish the parenting time of the unrelated parent;
- A judge has declared a parent to be legally incompetent;
- A parent has been incarcerated for at least 90 days; or
- The parents were never married.
The second factor is the one most commonly present. Typically, for practical purposes, the biological child carves out some of his or her parenting time and relegates it to his or her parents.
For a confidential consultation with an experienced Naperville family law attorney who is dedicated to giving grandparents and other secondary caregivers a voice in child custody proceedings, reach out to us today.