Grandparent Visitation FAQ

GRANDPARENTS ONCE AGAIN HAVE THE RIGHT TO PETITION ILLINOIS COURTS FOR VISITATION WITH THEIR GRANDCHILDREN

The new grandparent visitation statute was written by Illinois attorney Michael K. Goldberg, of the Chicago Law Firm of Goldberg Law Group, who represented the parent in Wickham v Byrne, the 2002 Illinois Supreme Court case that invalidated the former grandparent visitation statute. Mike Goldberg has testified several times at the Illinois House and Senate regarding the new grandparent visitation act, and has written and spoken extensively on the subject of grandparent's rights.

Here are some general answers to commonly asked questions. However, what follows is not legal advice, and a person interested in pursuing court ordered visitation under the new Grandparent Visitation Act should consult an attorney with any specific questions about his or her case.

What is grandparent visitation and why do Illinois Courts allow it?
Grandparent visitation is time spent with a grandchild without the presence of a parent. It can be all day, overnight or a just a few hours. More and more, grandparents, and other non-parents are being called upon to take on child-care responsibilities. This demographic change in the traditional American family has led to legislation that grants child visitation rights to non-parents, such as the Illinois Grandparent Visitation Act. 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, sometimes a parent objects to visitation between a child and grandparent. It is when this family friction occurs that the state must decide whether to interfere and if so to what extent it may permissibly do so.

When did the new Grandparent Visitation Act take effect and how is it different than the old one?
On January 1, 2005, after a two and a half year hiatus, a new Illinois Grandparent Visitation Act took effect, once again granting grandparents the statutory right to petition for court-imposed visitation with their grandchildren . The new Act is more restrictive than the former Illinois Grandparent Visitation Act , which was declared unconstitutional on its face by the Illinois Supreme Court in 2002 in Wickham v. Byrne .

The Wickham Court held that a court may not interfere with a parent's fundamental right to the care, custody and control of his or her child unless the child's health, safety or welfare will be adversely affected by a refusal of visitation. The Court ruled that the best interest standard was insufficient when determining visitation disputes between a parent and grandparent, since those disputes are less critical than visitation disputes between parents and ruled that the former Grandparent Visitation Act, which used that test, was unconstitutional.

The new Act makes it more difficult for grandparents to receive court-imposed visitation by creating a presumption in favor of a parent's decision, enhancing the burden of proof on the grandparent, and acknowledging a parent's fundamental right to parent his or her child. Also, the new act sets forth specific factors that the Court should use to determine whether to grant a visitation request, which are as follows:

•the preference of the child, if the child is old enough to state a preference;

•the mental and physical health of the child;

•the mental and physical health of the person seeking visitation;

•the length and quality of the relationship between the child and the person seeking visitation;

•the good faith of the parent and/or the party seeking visitation;

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

•whether the child resided with the petitioner for at least six consecutive months;

•whether the petitioner had frequent visitation with the child for at least 12 months; and

•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.

Who can petition for visitation under the new Act?
A grandparent, great-parent may petition for visitation with a child as can an adult sibling of a child.

When can a person petition for visitation?
When a parent dies, when parents get divorced, or if a parent is incarcerated.

What do I need to show a judge to get court-imposed grandparent visitation?
You must first show that you are being denied visitation. Then you must establish that you have more than just a biological relationship with the child. You must be able to convince the judge that if visitation is discontinued, harem will come to the child's mental, emotional or physical health.