In Illinois, grandparents do not have any automatic right of visitation with their grandchildren after a divorce. It may be that visitation was written into the original custody agreement, but if the custody arrangement changes, those visitation rights might change as well. A Northbrook family law attorney can help you with seeking grandparent rights with custody changes when they happen.
How Can a Grandparent Seek Visitation
In Illinois, grandparents who want visitation rights with their grandchildren may file a written petition with the family law court after the child reaches the age of one year. The law generally assumes that a parent who denies visitation has a good reason for doing so. However, grandparents may try to overcome this presumption that the parents act in the child’s best interest. To do so, the grandparent will have to prove that spending time with the child is essential to the child’s physical and emotional well-being.
What Does the Petition Require
In order to receive court-ordered visitation in Illinois, grandparents must show that the parent’s denial of visitation is unreasonable and causes physical or emotional harm to the child. The grandparent must also show at least one of the following facts:
- The child’s parent is deceased or has been absent for at least 980 days
- The child’s parent is not competent to care for the child
- The child’s parent has been in jail for at least 90 days
- The child’s parents have divorced or legally separated, and at least one parent doesn’t object to the visitation
- The child’s parents are unmarried and not cohabiting.
The burden of proof for all of this is on the grandparent. Even where one of the secondary factors is present, and the grandparent has an emotional bond with the child, the court will not order visitation if the grandparent cannot demonstrate that the child was physically or emotionally injured by the lack of visitation.
If, on the other hand, the grandparent does meet that burden of proof, the court will still consider several other issues to decide whether visitation should be granted and, if so, how often. These issues include:
- The preferences of the child, if old enough to have stated any
- The grandparent’s health
- The grandparent’s reasons for seeking visitation
- The amount of visitation requested and its impact on the child
- The quality of the existing grandparent/grandchild relationship
- The parents’ reasons for denying the visitation
- Whether and for how long the child ever lived with the grandparent
- Whether the grandparent was ever the primary caregiver for the child
- Whether the grandparent previously had visitation rights
- Any factors which might indicate that the loss of the relationship would harm the child emotionally, physically, or mentally
If these issues favor visitation, the court may grant visitation rights even over the parents’ objections.
The same rules will apply in an adoption, which terminates existing custody and visitation orders.
Grandparent Visitation Rights With Custody Changes
The relationship between a grandparent and grandchild can be a deep emotional tie. Severing that relationship unnecessarily can be harmful to the child. Be sure to seek a Northbrook family law attorney to assist in seeking that visitation.