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Grandparents and Visitation – Rights or Privileges?

By Leslie Fineberg on November 17, 2014

This is a frequent question that many families bring to our attention when going through, or shortly after, a divorce. What rights do grandparents have in regards to visitation? Are parents under any obligation to schedule out time for either set of grandparents to see their grandchildren? Unfortunately, the short answer is no – but there are plenty of caveats, with Illinois state code taking much into consideration. In the end, it comes down to the various ways in which the situation is being handled by the parent, as well as the mitigating and aggravating factors involved.

Under the Illinois Marriage and Dissolution of Marriage Act, specifically Illinois Compiled Statutes, Chapter 750, Section 5/607, grandparents now have the ability to petition the courts for visitation with their grandchildren if they are being otherwise blocked. It is important to note the distinction – the right to petition is given – but the courts are under no legal obligation to provide visitation, even if they are being denied by the parents. This is a radical change from years past; grandparents were essentially at the mercy of the custodial parents.

But in order to be given proper visitation, grandparents must prove a number of factors to the court’s satisfaction. First and foremost, they must confirm one of the following:

• The parent is dead or has been missing for over 3 months
• The parent is in prison for at least 3 months or the foreseeable future
• The parent is mentally or emotionally incompetent
• Either one of the parents do not object to the grandparents being given visitation
• The petitioner is a maternal grandparent, great-grandparent to a child born out of wedlock
• The petitioner is a paternal grandparent, great-grandparent to a child born out of wedlock

Beyond the relationship that exists between the grandparents and the custodial parent, there are additional criteria that judges use to ascertain whether visitation should be provided. Those considerations include and are not limited to:

• Whether or not the child wishes to see his or her grandparents
• What kind of relationship has already been established between the grandparents and grandchild
• The mental, emotional and physical health of both the child and the grandparents
• The good faith of both the person denying visitation and the person or people requesting it
• Were the grandparents the primary caretaker for more than 6 months

If you are currently being denied visitation and believe this to be an error or deliberate action on the part of the custodial parent, we recommend speaking with a dedicated family law attorney immediately. While your options are limited, you do have the right to file a petition – and we can help. Call the understanding attorneys at Nottage and Ward, LLP today for more information.