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The Current Status of Grandparent Visitation in Illinois |
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What is the current status of grandparent visitation in Illinois? |
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Was the old Illinois grandparent visitation statute replaced? |
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What does a grandparent have to do to obtain court-ordered visitation with grandchildren? |
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Who must prove what is written in a grandparent visitation petition, and what must be proven? |
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Does the grandparent automatically obtain visitation if the court finds the fit parent’s actions and decisions harm the child’s health? |
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Can grandparent visitation be modified after it is ordered? |
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Is the new Illinois grandparent visitation statute constitutional? |
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Can grandparents and parents or custodians of children agree on grandparent visitation? |
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What should grandparents and parents do to obtain or oppose grandparent visitation? |
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What is the best way for grandparents to have visitation? |
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| Q: |
What is the current status of grandparent visitation in Illinois? |
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To understand the current status, first you should know some recent grandparent visitation history. In 2000 the U.S. Supreme Court found the State of Washington’s grandparent visitation statute unconstitutionally interfered with the interests of fit parents to the care, control, and custody of their children. In 2002 the Illinois Supreme Court, based on the U.S. Supreme Court decision, found the previous Illinois grandparent visitation statute unconstitutional. |
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| Q: |
Was the old Illinois grandparent visitation statute replaced? |
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Yes. New grandparent visitation statutes went into effect in Illinois in January 2005. The new and previous grandparent visitation statutes also apply to great-grandparents and siblings seeking visitation, but the laws are commonly called grandparent visitation statutes. |
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| Q: |
What does a grandparent have to do to obtain court-ordered visitation with grandchildren? |
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File a petition in court requesting grandparent visitation that alleges the grandchild’s parent unreasonably denied visitation with the grandparent. At least one other prescribed condition must also exist, such as one parent is dead, in prison for more than a year, or incompetent as a matter of law. What constitutes unreasonable denial of visitation is debatable and depends on all of the facts and circumstances. If these requirements are not met, the court should dismiss or deny the grandparent visitation petition. |
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| Q: |
Who must prove what is written in a grandparent visitation petition, and what must be proven? |
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The grandparent has the burden to prove the parent’s actions and decisions about grandparent visitation harm the child’s health. The law presumes a fit parent’s actions and decisions about grandparent visitation do not harm the child’s health, but the grandparent can rebut this presumption. |
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| Q: |
Does the grandparent automatically obtain visitation if the court finds the fit parent’s actions and decisions harm the child’s health? |
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No. Even if the court finds the fit parent’s actions and decisions harm the child’s health, the court must still consider many factors to determine whether to grant grandparent visitation. These factors include the child’s preferences, the health of the child and the grandparents, the length and quality of the grandparent/grandchild relationship, and the frequency of contact between the grandparent and grandchild. |
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| Q: |
Can grandparent visitation be modified after it is ordered? |
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Yes. The court can modify grandparent visitation if it finds, by clear and convincing evidence and based upon facts that arose after the visitation order was entered or that were unknown when the order was entered, that a change has occurred in the child’s or custodian’s circumstances, and that modifying grandparent visitation is necessary to protect the child’s health. |
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| Q: |
Is the new Illinois grandparent visitation statute constitutional? |
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No one knows for sure. No reported Illinois appellate court opinion has addressed the constitutionality of the new grandparent visitation statute. |
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| Q: |
Can grandparents and parents or custodians of children agree on grandparent visitation? |
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Yes. Even after the previous grandparent statute was found unconstitutional, the Illinois Supreme Court upheld an order in which the child’s father and maternal grandparents (the mother died giving birth to the child) agreed on a grandparent visitation schedule. The court found the agreement was a binding contract and was not automatically void after the previous grandparent visitation statute was declared unconstitutional. Thus an agreement for grandparent visitation under the new statute should also be valid. |
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| Q: |
How much does grandparent visitation litigation cost? How long will it take? |
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Like all family law cases, the amount of time and money spent on grandparent visitation litigation depends on many factors. What aspects, if any, of grandparent visitation do the parties agree upon? Will experts, such as a psychologist, be consulted or retained? What type of discovery, such as depositions, will be conducted? Will a trial or hearing occur? In short the expense depends largely on the amount of time the lawyer spends. |
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| Q: |
What should grandparents and parents do to obtain or oppose grandparent visitation? |
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Consult a lawyer who is experienced and well-versed in grandparent visitation law and practice. The lawyer should tell you the good and bad aspects of the grandparent visitation request, including that the law favors the superiority of parental rights. But good facts can overcome an unfavorable law. |
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| Q: |
What is the best way for grandparents to have visitation? |
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Get along with the visiting parent so the grandparents can have visitation as part of the visiting parent’s visitation. |
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