Grandparent visitation in Illinois, as in the rest of the United States, is extremely limited. Fit parents have the right to the control and education of their children. In Illinois, grandparents can get visitation with grandchildren, but only under certain circumstances (such as the death of one parent) and showing the court that the parents decision to deny visitation harms the children.
What is the current status of Grandparent Visitation in Illinois?
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.
The current Grandparent Visitation statute
The current statute, 750 ILCS 5/602.9, can be found online or in a law library. Note that the law includes grandparent, great-grandparents, siblings, or step-parents in certain situations.
The Illinois statute was drafted to conform to the U.S. Supreme Court decision which struck a severe blow to grandparent visitation rights. The basis of the U.S. Supreme Court’s ruling was the decisions of an intact family regarding grandparent visitation should control. The current Illinois statute, therefore, states:
There is a rebuttable presumption that a fit parent’s actions and decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation are not harmful to the child’s mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent’s actions and decisions regarding visitation will cause undue harm to the child’s mental, physical, or emotional health.”
Under what circumstances may a grandparent receive visitation?
There must be an unreasonable denial of visitation that “causes undue mental, physical, or emotional harm to the child” and at lest one of the following must exist:
- The child’s other parent is deceased or has been missing for the last three months.
- The parent of the child is incompetent as a matter of law.
- A parent has been incarcerated in a jail or prison during a three-month period preceding the filing of the petition.
- The child’s mother and father are divorced or have been legally separated from each other pending a divorce proceeding involving the custody or visitation of the child and at least one parent does not object to a grandparent having visitation.
- A child is born to parents not married to each other, those parents are not living together and parentage has been established.
