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Understanding the Rights of Grandparents in Illinois

Most judges in DuPage County and other jurisdictions issue standing personal conduct orders in family law matters. Among other things, these order prohibit a parent from interfering with the parenting time of the other party. In many situations, an angry parent will impede the other biological grandparents' visitation time, in an effort to bypass these orders and “get back at” the other party.

Effective January 1 of this year, the Legislature repealed and replaced the existing grandparent visitation statute, as part of major rewrites to the Illinois Marriage and Dissolution of Marriage Act. But grandparents still have the right to file a petition for contact in some circumstances, and it is still possible to win these actions.

Prerequisites

According to Section 602.9(b), a grandparent is eligible to file a petition for access to a grandchild if:

  • In loco parentis: If a child's biological parent is legally incompetent, missing or deceased, the grandparents may essentially take that parent's place, in terms of parenting time.
  • Denial of contact during divorce: As mentioned above, most petitions are based on a denial of contact. In addition to a denial, at least one parent must not object to the petition and the granting of said petition cannot diminish the parenting time of the unrelated parent.

Roughly the same rules apply if the parents are not married to one another.

Overcoming the Parental Presumption

Section 602.9(b) also contains a rebuttable presumption that a denial of contact is “not harmful to the child's mental, physical, or emotional health.” To overcome this presumption, the petitioner can introduce evidence of:

  • Children's Wishes: Can the children explain why they have a preference, as opposed to simply stating a preference?
  • Mental and Physical Health: Do either the children or grandparents have special health situations that make unsupervised contact difficult or impossible?
  • Nature and Quality of Prior Relationship: Were the grandparents essentially babysitters, or did they actively take part in the children's lives?
  • Motivation: Do the grandparent and/or parent want what is best for the children or do the grandparent and/or parent want revenge on the other party?

The judge may also consider “any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to unduly harm the child's mental, physical, or emotional health.”

If you, or someone in your family, had a healthy relationship with grandchildren that has now been cut off or limited, contact an experienced Naperville family law attorney. After hours appointments are available.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000

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