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Grandparent Visitation

By David M. Goldman

Illinois is one of the most pro-parent and anti-grandparent states in the country on the issue of grandparent visitation. Section 607 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607) sets out a series of standards, factors, and requirements for grandparents that must be applied and considered for a grandparent to obtain and maintain a grandparent visitation order.  As of 2009, the trend in cases in Illinois has not been favorable to grandparent's visitation.

The words of Justice Fitzgerald in Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1 (2002) are reflected in the current statute:

In most cases, the relationship between a child and his or her grandparents is a nurturing, loving relationship that provides a vital connection to the family's history and roots.  However, as with all human relationships, conflicts may arise between a child's parents and grandparents. In many cases, this conflict would concern disagreements about how a parent is raising his or her children. Yet, this human conflict has no place in the courtroom. This is true even where the intrusion is made in good conscience, such as the request for visitation to preserve the child's only connection to a deceased parent's family. Parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presumption that the parents act in their children's best interest prevents the Court from second guessing parents' visitation decisions. Moreover, a fit parent's constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents - not judges - should be the ones to decide with whom their children will and will not associate. (99 Ill.2d 309,322).

The most recent amendments to the grandparent visitation statute, Section 607, are an attempt by the legislature to conform with State and Federal Supreme Court decisions. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) and Wickham v. Byrne.  Section 607 gives a grandparent standing in an independent action for grandparent visitation if the child is one-year old or if there is a pending action (other than juvenile court or adoption court action) that affects the custody or visitation of the child.  Understand that the current grandparent statute treats a grandparent, great grandparent and a "sibling" (as defined by the statute) in the same way.  This article uses the term "grandparent" as a shorthand for one of these people.

A grandparent can only file an independent petition in the county where the child resides.   To plead a proper grandparent visitation petition, there must be an unreasonable denial of visitation by a parent and at least one other requirement:

1. The parent must be deceased or missing for 3 months;
2. A parent is incompetent;
3. The parent is incarcerated for 3 months before the filing of the petition;
4. 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
5. A maternal grandparent can petition if the child is born out of wedlock and the parents are not living together.  But 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.

A grandparent visitation order may not diminish the visitation of the parent unrelated to the grandparent. There is also a provision that a visitation order is terminated by an adoption unless there is an adoption by a related party in which case a new grandparent visitation petition can still be viable.

The most important part of the Illinois grandparent visitation amendments is the rebuttable presumption that a fit parent's actions and decisions regarding grandparent visitation are not harmful to the child's mental, physical or emotional health. The burden of proof is on the grandparent to prove that the parent's actions regarding visitation are harmful to the child's mental, physical or emotional health.

In weighing the evidence, the court considers eleven factors:

1. The preference of a mature child;
2. The mental and physical health of a child;
3. The mental and physical health of the grandparent;
4. The length and quality of the prior relationship between the grandparent and the child;
5. The good faith of the grandparent;
6. The good faith of the person resisting visitation;
7. The amount of the time requested and the impact on the child's activities;
8. Whether the child resided with the grandparent at least 6 or more consecutive months -- with or without the current custodial parent;
9. Whether during the last 12 months the child had frequent and regular contact with the grandparent;
10. Whether the grandparent was a care taker for the child for 6 consecutive months or more;
11. 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.

When a Court grants a grandparent visitation order it does not necessarily have to require overnight or possessory visitation.

A grandparent visitation order cannot be modified by the grandparent unless the Court finds on the basis of facts arising since the prior order that were unknown at the time of entry of the prior order by clear and convincing evidence that a change in circumstances has occurred, making modification necessary to protect the mental, physical and emotional health of the child. Specific findings of fact in support of a modification or termination of grandparent visitation must be made. However, a child's parent may always petition to modify visitation using a lesser standard of proof, upon changed circumstances when necessary to promote the child's best interest.

There are many other provisions in section 607 that apply to specific topics of fees, restricted visitation, and visitation with a person convicted of certain specified crimes.

For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.