Non-Parents and Visitation

 Posted on July 27, 2017 in Visitation

In many cases, a family court will be called upon to reach a compromise regarding parenting time between a child’s mother and father. Sometimes, however, a person who is not a biological parent may be entitled to seek visitation rights with the child. Seeking visitation does not necessarily mean it will be granted, and under Illinois law, parents’ decisions regarding visits with their children generally enjoy deference from the courts.

The Decisions of “Fit” Parents

According to the Illinois Marriage and Dissolution of Marriage Act, the state recognizes that a child’s preferred primary caregivers, if they are fit, are the biological parents. The law also allows grandparents (or great-grandparents), stepparents, and siblings to file for visitation if the requirements to do so are met. However, there is a rebuttable presumption that any visitation-related decision made by biological parents with regard to who their children may see is justifiable and will be upheld by the courts.

In other words, this means that the burden of proof is on you, as the petitioner, to show that the decision of the biological parents is going to be detrimental to the physical, mental or emotional health of the child in question. This can be a very challenging unless there is demonstrable evidence of abuse that can be presented to the court. This alleged proof must be shown at the time you file your petition to request visitation with the child, in addition to the other requirements that you must meet in order for your petition to be considered.

Factors in Visitation Petitions

There are multiple requirements that must be met in order to even be able to file a request for visitation, including that the child’s parents have unreasonably prohibited visitation along with a showing of a demonstrable negative effect on the child. However, these are different than that which is required to rule on the petition itself. A list of factors that a court will consider in ruling on the petition for visitation is set out in the law and includes:

• The child’s preference (if they are old enough to have one);
• The quality of, and length of, the prior relationship (if any) with the grandparent, stepparent or sibling seeking visitation;
• The good faith (or lack thereof) of both the biological parents in denying visitation and the petitioner in requesting it;
• The mental and physical health of both the child and the petitioner(s);
• The overall effect that granting visitation would have on the child’s life in terms of taking away from other activities; and
• Whether visitation can be set up in a way so that the child is shielded from any bad feeling between adults.

It is important for all involved to know that while visitation may be granted, it could be permitted in a form other than in-person visitation. If the court believes it is in the child’s best interests to restrict visits to electronic communication such as Skype or FaceTime, which is commonly done in this age of technology, it may issue a such a ruling. It may not be optimal, but it is better than no contact at all.

Consult a Visitation Attorney

Parents may restrict other family members from seeing their children, or family members may seek visitation with their grandchildren, nieces, or nephews, for entirely legitimate reasons. However, the law is generally with the biological parents. If you are in a position where you need to apply for visitation with a younger relative, contact an experienced Naperville family law attorney today.

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050K602.9.htm

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000