by Anthony J. DelGiorno, Rammelkamp Bradney Law Offices
Grandparents now have greater ability to seek court assistance in obtaining the right to visit their grandchildren. The original Illinois Grandparent Visitation Act was enacted one year ago, but concerns over the statute's practicality lead to greater changes effective on January 1, 2007.
Grandparents may typically find themselves incapable of visiting their grandchildren in one of two situations- when a parent of a minor child has died or when parents divorce. In the first situation, oftentimes the surviving parent remarries and the stepmother wishes to adopt the child. The new family may be resistant to allowing the parents of the deceased natural parent to continue to visit the child. For the grandparents, this grandchild is often the last link to their deceased child.
In the second situation, parents may divorce and custody is awarded to the parent who is not the son or daughter of the grandparent. The parent with custody of the grandchild may not want to allow their former in-laws to have visitation for numerous reasons, including a fear that the grandparents would secretly allow their ex-spouse to have visitation. Overall, there are numerous scenarios that may lead a grandparent to seek assistance from a court in order to visit their grandchild.
The Fourteenth Amendment to the U. S. Constitution has been read to include that all parents have an uninhibited right to raise their children as they deem best. This includes deciding who can visit with their children. Therefore, before a court will allow a grandparent to obtain visitation rights, the parent must be unreasonable in not allowing visitation. In other words, the parent has no good excuse for denying the grandparent visitation.
Next, a court will only intervene and order grandparent visitation if the child is at least one year old. Once these two preliminary tests are satisfied, then the court will intervene only if one of several situations has occurred. Before the amendment of the law, grandparents could seek visitation if the parents were divorced or separated, the child was born out of wedlock with the parents not living together, or when a parent has been declared incompetent by a court.
The amended law, Public Act 94-1026, which can be found on the Illinois General Assembly’s website at www.ilga.gov, allows a grandparent to petition a court for visitation rights (1) while a divorce or custody proceeding is pending between the parents rather than after that proceeding has concluded, or (2) when a parent has been incarcerated or missing for at least three months.
As stated previously, one of the typical situations a grandparent faces is when their grandchild has been adopted. The law previously stated that adoption destroys a grandparent’s right to visitation. One of the greatest changes provided for in the new law states that grandparent visitation rights survive the adoption of the grandchild by a related party (i.e., a step-parent adopts the child). The law remains, however, that should unrelated third parties adopt a child, then rights to visitation cease.
In deciding whether to grant the request for visitation, the court will look at several factors listed in the statute including the preference of a mature child and the past relationship between the grandparent and the child. Since a parent is presumed to make the best decisions for their child, the burden is on the grandparent to prove that lack of visitation will be harmful to the grandchild’s emotional or physical well being.
The bond between grandparent and grandchild is recognized under Illinois law. Grandparents who find themselves without visitation now have greater ability to get court assistance to establish those rights.
Anthony J. DelGiorno is an associate with Rammelkamp Bradney Law Offices practicing in elder law, estate planning, probate, tax, and litigation. He can be reached in their Springfield Office at 866.494.0980.
