Grandparental Visitation

With societal changes creating more single parent or no-parent households, concern has arisen regarding the right of non-parents who develop significant roles in children’s lives. Grandparental and great-grandparental visitation rights were established in Illinois in 1981 in the Marriage and Dissolution of Marriage Act.

At Benckendorf & Benckendorf, P.C., our attorneys can help you understand grandparents’ rights in Illinois. To schedule an appointment, please call one of our offices or contact us online.

Case law that developed over almost 20 years was stood on its head by the U.S. Supreme Court in 2000, with its decision in Troxel v. Granville. In that case, the Supreme Court ruled the Washington state grandparental visitation statute unconstitutional, as it held that the sole surviving parent, who opposed grandparental visitation with the deceased father’s parents, had a fundamental right as a fit parent to make the decision regarding who the child would associate with. Justice Sandra Day O’Conner described the Washington statute as “breathtakingly broad,” as it allowed anyone to petition for visitation rights with the child at any time.

Shortly after the Troxel decision, the Illinois Supreme Court ruled in Lulay v. Lulay that the Illinois statute, section 607(b)(1), was unconstitutional as applied to the facts in that case. Both parents, who had joint custody, were opposed to visitation with the father’s mother and opposed her petition for visitation. The court held that the state had no compelling interest in interfering with the decision of two fit parents who have determined that the visitation should not occur. The court, however, refused to find the Illinois statute unconstitutional per se, leaving the door open to further litigation.

That litigation was not long in coming. In Wickham v. Byrne, the custodial mother opposed visitation with her deceased husband’s parents. The Illinois Supreme Court ruled that the Illinois statute permitting visitation by grandparents and great-grandparents is unconstitutional. Thereafter, and surprisingly, the Second District of the Illinois Appellate Court, notwithstanding the Supreme Court ruling, allowed a father to petition to allow his family to visit the child while the father was absent on active military duty. The Court held that he had the right to do so if circumstances are shown and also noted the Soldiers and Sailors’ Civil Relief Act, distinguishing this case where the father petitioned for visitation from those cases in which a grandparent or other family member petitioned for visitation.

Following the Supreme Court’s decisions, substantial political pressure from groups such as the AARP for a replacement statute came to bear. As a result, a new grandparental visitation statute became effective in Illinois on January 1, 2005. Narrow than its predecessor, the updated statute requires that petitioners (person or persons seeking visitation) must prove several different factors, as follows:

• To have standing to seek court ordered visitation, the grandparent, great-grandparent, or sibling of a child is required to show that he or she was unreasonably denied visitation by a parent. In addition, the petitioner must prove that one of the parents has died, been declared legally incompetent, or sentenced to jail for a period of more than one year. In the alternative, the petitioner must establish that the parents are divorced for three months and at least one parent does not object to the visitation, one of the parent’s rights has been terminated other than in juvenile court, or the child was born out of wedlock and the parents are not living together.
• The Court does not have jurisdiction under this statute if the parents’ parental rights were terminated. This requirement was included at the request of the Department of Children and Family Services (DCFS), who lobbied the General Assembly, saying that family members of parents whose rights have been terminated are often part of the problem that required the termination of the parental rights.
• The old Act had a presumption in favor of the persons seeking visitation. To be consistent with the Wickham case, that presumption is reversed, favoring the parents rather than the petitioners. The Act also notes that the burden is on the party filing the petition to prove that the parent’s actions and decision regarding visitation is harmful to the child’s mental, physical, or emotional health.
• The Court is required to examine many factors in determining whether to grant grandparental or other visitation, such as the preference of the child, the mental and physical health of the child, the mental and physical health of the person seeking visitation, the length and quality of the relationship between the child and persons seeking visitation, the good faith of the parents and/or party seeking visitation, the quantity of visitation requested, the child’s customary activities, whether the child resided with the petitioner for at least six consecutive months, and whether the petitioner had frequent or regular contact with the child within 12 months of the filing of the petition, as well as any other factor that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child’s mental, physical, or emotional health.
• The statute now specifically states that reasonable visitation does not require overnight visits.
• The statute also provides that the visitation order can be modified only after two years unless the parties agree otherwise or that the Court has reason, based on affidavits, to believe that the child’s present environment could seriously endanger his or her physical, mental, or emotional health.
• If the Court accepts a petition to modify, the petitioner must meet the clear and convincing evidentiary standard, rather than the lower standard of a preponderance of the evidence. Clear and convincing evidence is substantially more difficult (not being as high as the criminal standard of beyond a reasonable doubt) but being higher than the preponderate of the evidence standard used in most civil cases.

Finally, the statute assesses attorney’s fees and costs against a party seeking to modify the visitation order if the court finds that the modification action is vexatious and constitutes harassment. The Illinois Supreme Court ruled in Flynn v. Henkel that the lower court’s award of visitation to the paternal grandmother on the basis of direct emotional harm to the child by not having the opportunity to have a relationship with a grandparent is insufficient to rebut the presumption that a fit parent’s denial of grandparental visitation is not harmful to the child’s health. A grandparent will need to establish more to overcome the presumption in favor of a parent’s decision. While this case does not answer all the questions outstanding regarding grandparental visitation, it offers useful insight on how high the bar is, and that bar is high.