Dupage County Lawyers

Grandparent Custody

Illinois has always been a tough state for grandparents trying to establish rights to visit their grandchildren, but recent changes in the law have made it somewhat easier.  The Grandparent Visitation Act allows grandparents to visit with grandchildren without the presence of the custodial parent, provided a court-approved visitation plan is implemented. The law reflects recognition by the Illinois State Legislature of the positive role that a grandparent can play in a grandchild’s life and the benefits that such a relationship can bring for both grandparent and grandchild.

The compassionate and experienced Illinois grandparent visitation attorneys at Wolfe & Stec, Ltd., understand the issues and stresses grandparents face when having problems obtaining visitation with children they love.  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, inform you of your rights under the law, and determine how we may be able to help you assert your rights as grandparents.

Call us at 630-305-0222 to arrange for an appointment for your free consultation.

The Law Is Still Evolving

Illinois has had a grandparent visitation law since 1981, which has undergone many changes due to legal challenges. The current law provides for visitation rights for grandparents, great-grandparents, and adult siblings of a minor child, subject to court approval, and the statute uses the term “grandparent” for all of these people. As is the case with most new laws, the courts are still dealing with certain aspects of the new statute, and the application of the law may be changed further by future cases that arise.

Traditionally, grandparents were expected to have access to their grandchildren through the parent who was their child, so grandparent visitation laws were mostly for situations where this was impossible. For example, if the parent was in jail, deceased, incapacitated, or on active military duty, and the other parent denied access, grandparents could sue to see their grandchildren.

However, the situation gets complicated when conflicts arise between a child’s parents and grandparents. Parents are constitutionally allowed to raise their children as they decide, and fit parents are presumed to act in their children’s best interest, so the law states that parents – not judges – should be the ones to decide with whom their children will and will not associate. (99 Ill.2d 309,322).

To achieve visitation rights, grandparents must demonstrate that their access to their grandchild is being unreasonably denied and that they already have a positive relationship with the grandchild which would be harmed if visitation were not to occur.

In addition, grandparent visitation is not allowed to diminish the visitation of the parent unrelated to the grandparent. Also, a visitation order is terminated by an adoption unless there is an adoption by a related party.

Visitation When Parents Object

Grandparents who are being denied visitation with their grandchildren can file an independent petition for visitation in the county where the child resides.  They will need to show that they do not have access through the parent who is their child, that there is unreasonable denial of visitation by a parent, and one or more of the following:

  • The parent is deceased or missing for 3 months, incompetent, or incarcerated for 3 months before the filing;
  • The parents are divorced, legally separated, or there is a pending divorce or legal separation case and at least one parent does not object; or
  • A maternal grandparent can petition if the child is born out of wedlock and the parents are not living together. A paternal grandparent can petition for visitation for a child born out of wedlock only if the parents are not living together and paternity has already been established.

In making a decision whether to grant visitation, the court considers the following:

  • The preference of a mature child;
  • The mental and physical health of a child;
  • The mental and physical health of the grandparent;
  • The length and quality of the prior relationship between the grandparent and the child;
  • The good faith of the grandparent;
  • The good faith of the person resisting visitation;
  • The amount of time requested and the impact on the child’s activities;
  • Whether the child resided with the grandparent at least 6 or more consecutive months — with or without the current custodial parent;
  • Whether during the last 12 months the child had frequent and regular contact with the grandparent;
  • Whether the grandparent was a care taker for the child for 6 consecutive months or more;
  • Any other fact that establishes that the loss of relationship between the grandparent and the child is likely to harm the child’s mental, physical or emotional health.

Even if visitation is granted, it may not necessarily be for overnight or allow grandparents to take temporary possession of the child. Visitation can also be through electronic communication.

Modification of Visitation

Grandparents cannot modify visitation orders unless the court finds evidence that a change in circumstances has occurred, making modification necessary to protect the mental, physical and emotional health of the child. Parents have a lesser standard of proof and may always petition to modify visitation when necessary to promote the child’s best interest if circumstances change.

No requests for modification can be filed within two years of the original suit, unless there are specific circumstances. Third parties seeking modification of visitation may have to pay attorney fees and costs if the suit is found “vexatious” or filed for purposes of harassment.

Contact Us For Help

Since issues regarding grandparent visitation are so complex and vital to a child’s well-being, it makes sense to seek legal counsel.  The current law is slightly more restrictive as to grandparents’ rights because it places a greater weight on the custodial parent’s decisions. Therefore, attorneys for grandparents must present their case in clear and convincing terms.

The skilled Illinois family-law attorneys at Wolfe & Stec, Ltd. are steadfast advocates for grandparents’ rights.  We represent and advise clients in all types of child custody matters and will use the law and the court system to assert and secure your visitation rights, for the benefit of both you and your grandchild.

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.

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