Wednesday, February 25, 2015

Grandparent Visitation in Illinois

Grandparent visitation in Illinois, and the rest of the country has been something of a tennis match. The state legislatures, who were voted in office (by a large majority older people who happened to also be grandparents) have pushed for legislation that grants grandparents rights of visitation with their grandchildren in certain circumstances. The problem with that, is many of these statutes have interfered with the constitutional protections of parental rights. The constitution creates a presumption that parents are fit and act in the best interests of their children and that they have the fundamental right to make child-rearing decisions. So said the US Supreme Court in Troxel, 530 U.S. 57, 120 S. Ct. 2054 (2000). However the US Supreme Court did not strike down every grandparent visitation rights law in the land. It did say that these laws need to properly factor in parents fundamental rights before the state is justified in getting involved with child-rearing decisions.

At least as of the writing of this article, there is in place a grandparent statute in Illinois, 750 ILCS 5/607(b)(1). The law factors in a parent’s fundamental rights by putting some rather strict rules in place before a grandparent can even move forward. The first is having at least some basic facts in place before the court even lets a grandparent seek visitation.

  1. The case must be filed in the county where the child resides AND
  2. The child in question must be over the age of one AND at least one of the following applies:
    1. the child's other parent is deceased or has been reported missing to the police for at least 3 months.
    2.  a parent of the child has been declared incompetent by a judge;
    3. a parent has been in jail or prison for at least 3 months;
    4. the child's parents are divorced, legally separated or involved in divorce or custody proceedings and at least one parent does not object to the grandparent visitation;
    5. the child was born out of wedlock, the parents are not living together, and the persons seeking visitation is a maternal grandparent or the paternal grandparent if paternity has been established in court.

Note that this is a summary of some of the rules and there are exceptions and other conditions! Also, while I mention grandparents above, they are not the only persons covered. Great-grandparents, siblings and step-parents can also seek visitation under the law. Step-parents have some separate requirements to meet as well.

But we are not done. The statute continues to stack the deck against these individuals by not only putting the above rules in place but also by creating a rebuttable presumption that a fit parents actions and decisions regarding visitation are not harmful to the child’s mental physical or emotional health. This is yet another hurdle to overcome. In order to get over that presumption, the grandparent must prove that the parent’s decision regarding visitation is harmful to the child’s mental, physical or emotional health. It’s a tough and strict barricade to protect against the state (i.e. the judge) intervening in matters of parent’s constitutional right. Once all of those hurdles are met and if the court allows the grandparent’s case to continue, the court will then look at nearly a dozen factors to further assess whether grandparent visitation is to be allowed over a parent’s objection.

So far Illinois grandparent visitation law remains in force and to navigate through it or against it, a careful analysis of the statute and case law interpreting it must be done in each situation. I have seen where judges (often older themselves) are very sympathetic to grandparents. No doubt when the parents themselves are very young, courts look for stability for small children and young parents cannot always offer that. Often it is the grandparents of these children that can provide stability. Thus a judge looking at the best interests of the children may be inclined to look toward the grandparents. However, just because a grandparent’s home may be the best place for a child, doesn’t meant the child should live there given a parent’s fundamental rights.

If you face this situation, consult an attorney as this article only touches on the general state of the law and is not a full or complete analysis. Finally, as stated above, it is also an area of the law that can change quickly.