The issue of grandparents’ rights to file legal proceedings pertaining to visitation or custody for their grandchildren is of great interest to senior adults in Illinois and throughout the United States.

In Illinois, a previous law which allowed grandparents and great-grandparents to petition a court for visitation rights was stuck down by the Illinois State Supreme Court. However, Illinois passed a law (effective January 2007) providing for grandparent, great-grandparent and sibling visitation under the following conditions.

1. the child is one year old or older,
2. the grandparent can file a petition if one parent is unreasonably denying visitation, and at least one of the following conditions exist–
   • the child's other parent is deceased or has been missing for at least three months,
   • a parent of the child is incompetent as a matter of law,
   • a parent of the child has been incarcerated in jail or prison for the three months prior to filing,
   • the mother and father of the child are divorced or legally separated and at least one parent does not object to the grandparent having visitation,
   • the child was born out of wedlock and the parents are not living together (paternal grandparents must establish paternity),
3. grandparent visitation rights end upon termination of parental rights or non-relative adoption of the child.

The grandparent may not use visitation to allow the parent who lost paternal rights to the child to unlawfully visit with the child.

The burden is on the petitioner (grandparent) to prove that the parent’s actions and decisions are harmful to the child.

In determining visitation the court in Illinois will consider:

1. The preference of the child, if the child is old enough to express a preference.
2. The mental and physical well being of the child.
3. The mental and physical well being of the grandparent.
4. The length and quality of the prior relationship between the child and grandparent.
5. The quantity of the visitation time requested and the impact of the request on the child’s activities.
6. Whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian parent present.
7. Whether the petitioner had frequent or regular contact with the child for at least 12 consecutive months and
   any other fact that establishes that the loss of the relationship between the petitioner and child is likely to harm the child’s physical, mental and emotional health.

Visitation rights in other states may be different.

What grandparents must understand is that parents have legally protected fundamental rights to make decisions concerning their children. Grandparents have no such legal protection. In states where there is no law granting grandparent visitation rights, any visitation rights grandparents have derive from the child’s parents or from the authority of the state to intervene in family issues when there are events which trigger the state’s authority to protect children, such as in cases of abuse or neglect.

Custody issues are complex. Grandparents seeking some form of custody will need to consult an attorney-at-law.

Children benefit from a close loving relationship with their grandparents. In a perfect world this relationship would be the norm. Unfortunately, many family situations and circumstances exist which hinder this kinship.

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Note: For more information, contact the Southern Illinois University Carbondale Legal Services to Older Persons.

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