Many parents and grandparents are not familiar with the term grandparents’ rights until a disagreement arises between the parents and grandparents, or one of the parents dies and the grandparents’ relationship with their grandchildren is discontinued. When the grandparents no longer have access to, or are limited in the amount of time they can spend with their grandchildren, they may begin to explore their legal rights to visitation with their grandchildren.
In deciding cases requesting grandparents’ rights to visitation, courts begin with a presumption that fit parents have a right to make the appropriate decisions regarding who their children can see. This is because the Supreme Court of the United States has held that parents have a constitutional right to make decisions on the care, custody, and control of their children.
Nevertheless, Illinois law allows grandparents to make a request for visitation with their grandchildren under certain circumstances. Illinois law specifically states that a petition for grandparents’ visitation can only be filed if there is an unreasonable denial of visitation by the parent, the denial has caused the grandchild harm, and at least one of several other criteria are met. The law also focuses on the best interest of the child. If there is a chance that visitation with the grandparent will cause emotional, physical, or mental harm to the grandchild, then chances are visitation will not be awarded to the grandparents.
Grandparent petitions for custody rights are allowed under a more narrow set of circumstances where the child is not in the physical custody of a parent. Grandparents who want to apply for parental responsibilities have to show that a parent who was their child is deceased and that at the time of the death:
- The surviving parent was missing from the marital home without the deceased spouse knowing his or her whereabouts;
- The surviving parent was in prison; or
- The surviving parent was convicted of certain crimes.
In deciding whether to award custodial or visitation rights to the grandparents, the courts do look at the relationship the grandparents and grandchildren had beforehand. If there was a strong relationship, and the child lived with the grandparents without suffering any harm, it can make a more compelling case for visitation.
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Reconciliation does not always work in a situation where parents and grandparents do not get along and the grandparents’ relationship with the grandchildren is limited. If your child’s grandparents are seeking custody or visitation rights with your children, you should consult a passionate DuPage County family law attorney to discuss your options. Contact Momkus McCluskey Roberts LLC today. As your child’s parent, you are in the best position to decide what is in your child’s best interest, and you need a lawyer who can help you fight to make the parenting decisions you need to keep your child safe.