ILLINOIS LAW ON GRANDPARENTS’ VISITATION RIGHTS by L. Shelton
This post assumes that the custodial parent has denied visitation for the non-custodial parent-related grandparents.
As explained in the following it is almost impossible to obtain visitation for grandparents by court order unless the grandparents can prove, by convincing evidence that without their visitation the child’s mental, physical, or emotional health will be harmed. Therefore, the grandparents must obtain affidavits from psychologists, testimony from the child, or independent testimony from persons other than themselves that there is hard evidence that a child will be harmed without their interactions with the child. There is a presumption in the law that the parent’s decision to bar visitation from the grandparent does not harm the child.
It is a sad statement that although the Illinois law supports in principle grandparents’ visitation rights in cases where parents are not available, in reality the Illinois Supreme Court’s interpretation of this law eviscerates it so that if a custodial parent refuses to allow the grandparents to visit with the child, the grandparents have no recourse.
Grandparents’ rights are contained in several different statutes including:
- Illinois Marriage and Dissolution of Marriage Act (IMDMA) 750 ILCS 5/101, et seq.,
- Illinois Probate Act of 1975 (Probate Act), 755 ILCS 5/1-1, et seq., and
- Illinois Adoption Act, (Adoption Act) 750 ILCS 5/0.01, et seq..
In common law, the superior right of the natural parent to raise and control their children was absolute barring special circumstances, such as when a parent died and his/her parents were trustee for their grandchild, or when the parent died and the grandparents had a long established close relationship with the child. In re Marriage of Spomer, 123 Ill.App.3d 31, 462 N.E.2d 724, 78 Ill.Dec. 605 (1984) [5th Dist].
Since 2005, although the Illinois Supreme Court (IL S Ct) has not addressed the constitutionality of the act yet, under the Probate Act and the IMDMA grandparents can move for visitation. Amendments to the IMDMA have been considered in Flynn v. Henkel, 227 Ill.2d 176, 880 N.E.2d 166, 316 Ill.Dec. 688 (2007).
In 2000 the legislature enacted law to allow grandparents visitation rights, IMDMA §§607(b)(1) and 607(b)(3). This was held unconstitutional in Wickham v. Byrne, 199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799 (2002). They ruled the statute infringed on the natural parents’ fundamental right “to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham 769 N.E.2d at 5. See also Schweigert v. Schweigert, 201 Ill.2d 42, 772 N.E.2d 229, 265 Ill.Dec. 191 (2002); and Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 521, 250 Ill.Dec. 758 (2000).
Statutes that infringe on such fundamental rights can only survive if narrowly tailored to serve a compelling government interest. Laws pertaining to mandatory immunizations, protection against child abuse, and child labor prohibitions will survive.
In 2005 the legislature narrowed the situations where grandparents can move for and obtain visitation to comport with the above principles. This statute permits grandparents to seek visitation with their grandchild if the child’s parent or parents unreasonable deny visitation and at least one of five situations exists. 750 ILCS 5/607(a-5)(1):
1) One parent is incompetent, deceased, or imprisoned for more than one year.
2) The child’s parents are divorced for at least three months, at least one of the parents does not object to the visitation, and the grandparent visitation would not interfere with the visitation enjoyed by the parent not related to the grandparent seeking visitation.
3) If a court other than a juvenile court or adoption court has terminated one parent’s rights in the child and this parent is the child of the grandparent seeking visitation.
4) The child was born out of wedlock, the parents do not live together, and the petitioner is a maternal grandparent.
5) The child was born out of wedlock, a court has established paternity, the parents do not live together, and the petitioner is the paternal grandparent.
The statute prohibits petitions for grandparents visitation if the parental rights have been terminated in an adoption proceeding, 750 ILCS 5/607(a-5)(2).
The statute places the burden of proof on the grandparent and the Illinois Supreme Court has interpreted this so onerously that it is now virtually impossible for grandparents to obtain visitation if the custodial parent does not approve of it.
“[T]here is a rebuttal presumption that a fit parent’s actions and decisions regarding grandparent . . . visitation are not harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(3) To prevail on a petition for visitation, the grandparents must prove that the parent’s actions and decisions in denying visitation harm the child’s mental, physical, or emotional health. Id. In determining whether this rebuttable presumption is overcome, the trial court is directed to consider numerous factors. These factors are:
1) the child’s preference,
2) the mental and physical health of the child and the grandparents,
3) the duration and nature of the child’s relationship with the grandparents,
4) the good faith of the grandparents in seeking visitation and of the person denying visitation,
5) the amount of visitation time requested and
6) whether this visitation would adversely impact the child’s other activities,
7) whether the child lived with the grandparents for at least six consecutive months with or without the current custodial parent,
8) whether the grandparents have had frequent contact with the child for at least 12 consecutive months,, and
9) any other facts that demonstrate that severing the relationship between the grandparents and the child will harm the child’s mental, physical, or emotional health.
750 ILCS 5/607(a-5)(4).
If the grandparents prevail, the court still has great flexibility in shaping the order. The court may refuse to grant overnight visitation or even possessory visitation. The court need only provide grandparents with reasonable access to the child. 750 ILCS 5/607(a-5)(5).
Modifications of these grandparents’ visitation orders may be requested every two years, similar to this restriction on custody orders, unless the court is provided affidavits alleging facts that demonstrate “the child’s environment may endanger seriously the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(1). It must be proved by clear and convincing evidence that circumstances have changed since entry of previous visitation orders, which are necessary to protect the child’s mental, physical, or emotional health. Changes to the grandparent’s circumstances are irrelevant. The changes must relate to the child and the custodian. (750 ILCS 5/607(a-7)(2). The petition to modify visitation may be premised only on factual allegations that were nonexistent or unknown to the court when the previous visitation order was entered. (Id) “Attorneys’ fees and costs shall be assessed against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.,” 750 ILCS 5/607(a-7)(3).
Several amendments took effect in 2007:
1) Grandparent visitation statutes do not apply to children less than one year old. 750 ILCS 5/607(a-3)
2) The Petition must be filed in the county in which the child resides. 750 ILCS 5/607(a-3)
3) The grandparent may petition for visitation during a pending divorce proceeding or any other proceeding involving custody of a child. 750 ILCS 5/607(a-3)
4) The grandparent may petition for visitation if the parent has been missing for three months. 750 ILCS 5/607(a-5)(1)(A-5) [missing means the person cannot be located and the fact they are missing has been reported to a law enforcement agency.] (Id.)
5) The grandparent may also petition for visitation if the parent has been incarcerated during the three month period prior to the filing of the petition. 750 ILCS 5/607(a-5)(1)(A-15).
6) The grandparent may petition for visitation if the child has been adopted by a relative or a stepparent [which changes the law barring visitation after adoption.].
The IL S Ct has ruled in Flynn v. Henkel, 227 Ill.2d 176, 880 N.E.2d 166, 316 Ill.Dec. 688 (2007), concerning grandparent visitation rights under these statutes. The court reversed the lower court and Appellate Court decisions granting visitation, stating that the grandparents, in this case where the child was born out of wedlock, did not meet their burden of proof to show that it is harmful to the child’s mental, physical, or emotional health if visitation with the paternal grandparents was denied. The constitutionality of the new grandparent visitation statute has not been addressed.
Neither denial of an opportunity for grandparent visitation, as the trial court found, nor a child “never knowing a grandparent who loved him and who did not undermine the child’s relationship with his mother,” as the appellate court held, is “harm” that will rebut the presumption stated in section 607(a-5)(3) that a fit parent’s denial of a grandparent’s visitation is not harmful to the child’s mental, physical, or emotional health. 880 N.E.2d at 171.
Under the probate act, a grandparent may petition for visitation if:
1) both parents are deceased, and
2) the grandparent is the parent of the child’s legal parent. [thus if the adoptive parents both die, the grandparents may petition for visitation only if they are parents of the adoptive parents.]
755 ILCS 5/11-7.1(a). The burden of proof to prove these things by the preponderance of the evidence is on the petitioner. Again,, if adopted by a close relative, then the grandparents may petition for visitation. Close relatives include aunts, uncles, first cousins, and brothers and sisters of the child.