I’m an Illinois grandparent. What are my rights as to my grandchildren?

A common query of family law attorneys in Illinois and elsewhere is about grandparents' rights. These rights differ from state-to-state, with some jurisdictions automatically imbuing grandparents and other close relatives (like siblings or great-grandparents) with visitation rights. Other states - Illinois included - treat grandparent bonding time with grandchildren not as a right, but as a privilege.

What does this mean for you, an Illinois grandparent? It means that you have the right, under Illinois statute 750 ILCS 5-607(a)(3), to ask a court to grant you visitation time with your grandchild or grandchildren. Unfortunately, the law doesn't state that your request will be granted; it merely gives you the right to file a petition to ask.

Just because you are the child's biological relative who isn't subjectively getting the time you think you deserve to spend with the child, that isn't enough for you to involve the court, though. You must meet certain statutory criteria when filing a request in order for it to be granted. You must both show that there has been an "unreasonable denial of visitation" by one parent, and that one of the following also exists:

  • The child's other parent is deceased or missing
  • The child's other parent is incarcerated
  • The child's other parent has been deemed incompetent
  • At least one parent (when the parents are divorcing) doesn't object to you having visitation rights
  • The person seeking visitation is a close maternal family relative (applicable if the parents are unmarried and paternity has not been established)
  • The person seeking visitation is a close paternal family relative (applicable if the parents aren't married and paternity has been established)

Furthermore, the law presumes that a custodial parent's choices about who is or is not allowed to spend time with the child are correct. The party seeking visitation has the burden of showing the court that it is harmful to the child's "mental, physical or emotional health" to keep the petitioner and the child apart.

Of course, this statute is only necessary if your grandchild's custodian refuses to grant you access. Should you be able to reach an agreement without involving the court, that is preferable to having to seek judicial intervention, even if you need the added assistance of an experienced Illinois family law attorney to reach that agreement.

Statutory guidance

As stated, grandparent visitation is controlled by 750 ILCS 5-607(a)(3) and following. That statute not only provides the criteria necessary for a relative to seek visitation, but also the factors by which a judge can determine whether to grant a valid request. These include:

  • Wishes of the child
  • Mental, physical and emotional health of the child
  • Mental, physical and emotional health of the party seeking visitation
  • Reasons for filing the petition
  • Reasons for the parent/custodian to deny visitation
  • Amount of visitation sought
  • Past contact between the petitioner and the child
  • Other factors the court deems relevant

As you can see, grandparent visitation is not "cut and dry." To learn more about legal options at your disposal to help you foster a relationship with your grandchildren, consult a skilled family law attorney in your area.