Grandparent and Other Third-Party Rights

Each state has enacted its own laws regarding grandparent visitation. While, there is not a federal law that governs grandparent rights, the landmark United States Supreme Court case Troxel v. Granville set the standard for state grandparent visitation laws in all states. The Court In Troxel, the Court struck down a Washington state statute because it did not consider a parent’s reasons for opposing visitation by a grandparent.

There is a rebuttable presumption that a parent is acting in his or her child’s best interests by prohibiting visitation with third parties. This means that a grandparent seeking visitation must rebut that presumption by proving that spending time with a grandchild is essential to the child’s physical and emotional well-being. The law presumes that parents have fundamental rights to rear and raise their children as they see fit. In general, the government and third parties, including grandparents, cannot interfere with these parental rights unless the child is being harmed.

Grandparent visitation rights have developed gradually over the years. As Illinois Courts have wrestled with the rights of nonparents to have visitation, the list of those who can obtain visitation rights has expanded to include great-grandparents, stepparents, and siblings. The Illinois Statute governing nonparent visitation (See 750 ILCS 5/602.9, added by P.A. 99-90 (eff. Jan. 1, 2016)) defines who can bring a petition to obtain non-parent visitation, actions that can be taken, factors considered in granting visitation, termination of a visitation Order, modification of a visitation Order, and limitations visitation.

The Illinois statute also sets the initial standard that must be met in order to bring such a petition for visitation and that standard is two-fold: Has there been an unreasonable denial of visitation by a parent and has that denial caused the child undue mental, physical, or emotional harm? This is a very difficult standard for nonparents to meet and few cases are successful, especially when the parents divorce.

Before a nonparent can file a petition for visitation, the child must be at least one year old and one of the following circumstances must exist:

  • One of the parents of the child has been confirmed to be unfit or incompetent;
  • One of the parents has been incarcerated in jail or prison for at least three months;
  • One of the parents is either dead or has been absent for the preceding three months;
  • The parents are divorced and one does not disagree to the visitation by the grandparents; or
  • The parents are not married and do not live together.

The major deciding factor is ultimately what is in the best interest of the grandchild, just as it is in parental responsibility (custody) and parenting time (visitation) cases during a divorce or a parentage matter. A child’s best interest can be based on many factors including a child’s preference, the health of the child and grandparents, and whether there is any adverse effect of the visitation on the child.  The reliability and trustworthiness of the grandparents can be seen as a major benefit for children who are missing a parent.

If you are interested in petitioning the Court for visitation with a grandchild or interested in having the petition dismissed, Susan has many years of experience in representing nonparents seeking visitation and representing parents who wish to prohibit it. Susan will listen to your concerns, focus on the specific facts of your situation, and advise you as to the law governing nonparent visitation and how it applies to your situation.