When parents become incapable of taking care of their children, it is often the grandparents who step up to the plate and take over. According to an Illinois Bar association 2005 newsletter, there are more than six million children who live with grandparents or other relatives in the United States, and more than 100,000 in Illinois alone. Often, these grandparents are female, under 60 years old, and wind up caring for their grandchildren on a long-term basis.
Grandparents become caregivers for their grandchildren for reasons that include death of the parents; abuse or neglect of the children; or the substance abuse, illness or incarceration of the parents. Sometimes this is a temporary role, but often grandparents wind up with custody of the children and raising them to adulthood. Many times these grandparents need assistance and advice.
The compassionate and experienced Illinois family-law attorneys at Wolfe & Stec, Ltd., understand the issues and stresses grandparents face when seeking custody and are bringing up grandchildren. We recognize that the well-being of the children should come first. We offer a free initial consultation for grandparents to examine your individual situation and help come up with solutions that are best for you and your grandchildren.
Federal and state laws recognize that parents have fundamental rights to rear and raise their children as they see fit, and, in general, grandparents can’t interfere with a parent’s rights unless the child is being harmed. In Illinois, grandparents can request custody only if:
Even if a grandparent may be better equipped to meet a child’s needs than a parent, this is not enough for the grandparents to get custody. If you are a caretaking grandparent seeking custody of your grandchildren, you need to take action to legalize the relationship. This will allow you to have benefits that include providing health insurance, enrolling children in school, having the authority of a parent, and receiving certain government benefits.
Options to legalize the grandparent-child relationship are custody or guardianship, but first it has to be shown that the grandparents have the right, or “standing,” to seek custody or guardianship. This can occur if the grandparent has more than temporary physical possession of the child. Initially, this usually happens with the consent of the natural parents, but if the parents object, the situation becomes more difficult.
Custody establishes the right and authority to care and act for a child as a parent would, but it is not always permanent. If circumstances change, parents can get children back if granted a change in custody.
Under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) (750 ILCS 5/601(b)), the grandchild must not be “in the physical custody” of the parents in order for the grandparents to petition for custody. There must also be a “voluntary relinquishment” by both parents. Acquiring an award for custody gives authority to grandparents for most decision-making. Child support may still be obtained, and parents still have the right to visitation and possible future modification of order.
Guardianship is more permanent. For guardianship, standing must be established by one of several methods:
1) The natural parents voluntarily relinquish physical custody of the child,
2) The natural parents give consent or do not object to the guardianship, or
3) The natural parents’ ability to care for the child is rebutted and parental rights are terminated.
The Probate Act. (755 ILCS 5/1-1 et.seq.) provides for “guardianship.” The parents must voluntarily give up the child and remain financially liable for support, and they may eventually move to terminate the guardianship.
If approved by the courts, parents may also designate a grandparent as a “standby guardian,” effective upon the parents’ incapacity or death. (755 ILCS 5/1-2.23, 755 ILCS 5/11-5.3, and 755 ILCS 5/11-13.1)
Illinois courts decide custody or guardianship, or even allow grandparents to adopt after considering factors that determine what is in the child’s best interests. The Adoption Act (750 ILCS 50/1, et.seq.) provides for grandparent adoption and involves a complete termination of parental rights if parents consent or are demonstrated unfit.
Raising children is difficult and costly, so there are a number of programs dedicated to help grandparents raising grandchildren. These include:
Since issues regarding grandparent custody are so complex and vital to a child’s well-being, it makes sense to seek legal counsel to determine if you have standing and what is the best route to take. The skilled Illinois family-law attorneys at Wolfe & Stec, Ltd. know the laws, the family courts, and the system and can guide you through the process. We represent and advise clients in all types of child custody matters.
Don’t delay. For a free initial consultation with an experienced and compassionate DuPage County custody lawyer, contact us online or call 630-305-0222 for a free initial consultation.