Visitation for Non-Parents

 Posted on September 06, 2017 in Visitation

In Illinois, only parents are entitled to visitation rights with their children. However, in certain situations, non-parent relatives such as grandparents, great-grandparents or siblings may petition for visitation rights. Whether or not they will be granted depends on the facts of the case, but the law does allow for such considerations in certain situation.

Statutory Authority

The Illinois Marriage and Dissolution of Marriage Act grants parents the right to visitation—now known as parenting time—with their children. This right is generally upheld in all but the most extreme circumstances. Illinois courts tend to be of the opinion that children are best served by having both parents in their lives and have expressed this belief even in cases where one or both parents are incarcerated or profoundly mentally ill. The only criteria the court uses to deny parenting time is if it finds that spending time with a particular parent would endanger the child’s physical, mental, or emotional health.

However, if a court does reach a determination that one or both parents are unfit and the child is placed in foster care, they may see fit to grant visitation to another family member. This right is also exercised in rare situations over the objections of a parent. The statute grants grandparents and certain others with familial relationships the right to petition for visitation, though it does not state that the petition will always be approved. At least one of the following criteria must apply before a grandparent’s visitation petition will even be considered:

• One of the child’s parents is deceased or has been missing for at least 90 days;
• One of the child’s parents has been declared incompetent;
• A parent has been in jail or prison for at least 90 days before the petition’s filing date;
• The child’s parents are divorced and at least one parent consents to the grandparents’ visitation; or
• The child’s parents were never married. If the paternal grandparents want to apply for visitation, paternity must be established.

If one or more of these applies and you can prove that the parent(s) have “unreasonably denied” you visitation, you have leave to apply with the court.

The Balancing Test

If you as a grandparent, great-grandparent, or sibling are permitted to apply for visitation, the court’s procedure for deciding the case is fairly simple. It must balance the right of parents to raise their child with minimal interference with the best interests of the child. Factors that affect the “best interest of the child” include the child’s relationship with you, the physical and mental health of both yourself and the child, the amount of visitation requested, and the child’s position (that is, where they live and whether their relationships would be affected by a move).

Be advised that to apply for visitation as a work-around for a parent who has been denied may result in your privileges being permanently revoked. For example, it is relatively common for grandparents to apply for visitation when their son or daughter has been denied visitation with their child, and then allow the parent time with the child at their home. In that case, both the offending parent and the grandparents would likely have their visitation privileges revoked on a permanent basis.

A Family Law Attorney Can Help

The process of proving that visitation would be in the best interests of the child can be difficult. A competent visitation attorney can help. The experienced Naperville family law attorneys at Pesce Law Group, P.C. understand the delicate balance that must be maintained to keep family relationships as they should be, and we will work hard to obtain the best possible outcome from everyone involved. Contact us today to discuss your options.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59

https://www.isba.org/committees/women/newsletter/2007/11/grandparentsvisitationrightsarestil