AREAS OF PRACTICE

Grandparents Rights

Elmhurst Illinois Grandparent's Rights Attorneys

Grandparent’s Rights have taken on a new importance. Illinois law, based on decisions by the U.S. Supreme Court, follows a “superior rights” doctrine which means the natural parents rights are superior to the rights of the grandparents. However, effective January 1, 2007, the Illinois Marriage and Dissolution of Marriage Act was amended to allow grandparents to intervene in a pending divorce and additionally permits grandparents to petition for parenting time even if their grandchild has been adopted. Under very strict guidelines children whose biological parents' rights have been terminated are excluded from the Act.

There are situations where it is appropriate for the grandparent to file for either custody or guardianship with their grandchildren. There are two types of custody, legal which involves decision-making, and physical which determines where the child will live. Seeking custody is proper where the grandparent has already taken on the primary parenting role for at least a year, the child is not receiving proper parental care from either biological parent, or if the grandparent has a reasonable suspicion to suspect that there is child abuse, neglect, or mental illness involved between the parent and children.

Pursuant to 750 ILCS 5/607, to be able to access the court when filing a petition for parenting time, the grandparents must allege that the natural parent’s denial of parenting time is unreasonable and in any one of the following:

  • the child's other parent is deceased or has been missing for at least three months,
  • a parent of the child is incompetent as a matter of law,
  • a parent of the child has been incarcerated in jail or prison for the three months preceding the filing of the pleading,
  • the mother and father of the child are divorced or legally separated from each other and at least one parent does not object to the grandparent having parenting time,
  • the child was born out of wedlock and the parents are not living together and the Petitioner is the maternal or paternal grandparent of the child (paternity must be proven).

In determining whether to grant grandparent parenting time, the courts consider the following factors:

1. the preference of the child, if the child is mature enough to state a preference;

2. the mental and physical health of the child;

3. the mental and physical health of the person seeking visitation;

4. the length and quality of the prior relationship between the child and grandparent;

5. the good faith of the party in filing the petition;

6. the good faith of the person denying the visitation;

7. the quantity of visitation requested and the potential adverse impact on the family;

8. whether the child resided with the petitioner for at least six consecutive months with or without the biological parent present;

9. whether the petitioner had frequent visitation with the child for at least twelve months;

10. any other factor that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child's mental, physical, or emotional health.

As with any issue involving the children, the court must decide that the parenting time between the grandparent and the grandchild is in the best interest of the child.