Illinois Grandparent Visitation-Getting Started

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:

  1. the preference of the child, if the child is old 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 relationship between the child and the person seeking visitation;
  5. the good faith of the parent and/or the party seeking visitation;
  6. the quantity of visitation requested and the potential adverse impact on the family;
  7. whether the child resided with the petitioner for at least six consecutive months;
  8. whether the petitioner had frequent visitation with the child for at least 12 months;
  9. 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.

 

A grandparent, great-parent may petition for visitation with a child as can an adult sibling of a child. You can petition for visitation when a parent dies, when parents get divorced, or if a parent is incarcerated. 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, harm will come to the child’s mental, emotional or physical health. This is done by demonstrating to the Court the strong relationship that exists between the grandparent and child.