For years Illinois had a “grandparents’ rights” statute in the Illinois Marriage and Dissolution Act. Then in 2002, Wickham vs. Byrne, 769 N.E.2d 1 (2002) was decided in the Illinois Supreme Court holding that the grandparents’ rights portion of the Illinois Marriage and Dissolution Act was unconstitutional.
Then in 2016, the Illinois Marriage and Dissolution Act was re-written to include new language about grandparents’ rights to see the see their grandchildren. Let’s consider the current statute as it stands today and then review the possibility that a parent that does NOT want to their children to see their grandparents could say enforcing grandparent visitation is still unconstitutional.
“Grandparents, great-grandparents, step-parents, and siblings of a minor child who is one year old or older may bring a petition for visitation and electronic communication under this Section if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and if at least one of the following conditions exist:
- (A) The child’s other parent is deceased or has been missing for at least 90 days. For the purposes of this subsection a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency; or
- (B) A parent of the child is incompetent as a matter of law; or
- (C) A parent has been incarcerated in jail or prison for a period in excess of 90 days immediately prior to the filing of the petition; or
- (D) The child’s parents gave been granted a dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving parental responsibilities or visitation of the child (other than an adoption proceeding of an unrelated child, a proceeding under Article II of the Juvenile Court Act of 1987, or an action for an order of protection under the Illinois Domestic Violence Act of 1986 or Article 112A of the Code of Criminal Procedure of 1963) and at least one parent does not object to the grandparent, great-grandparent, step-parent, or sibling having visitation with the child. The visitation of the grandparent, great-grandparent, step-parent, or sibling must not diminish the parenting time of the parent who is not related to the grandparent, great-grandparent, step-parent, or sibling seeking visitation; or
- (E) The child is born to parents who are not married to each other, the parents are not living together, and the petition is a grandparent, great-grandparent, step-parent, or sibling of the child, and parentage has been established by a court of competent jurisdiction.” 750 ILCS 602.9(c)
So, for clarity’s sake let’s consider, under the statute when a grandparent CANNOT petition the court for visitation. The statute is very clear that if the parents are still together a grandparent CANNOT come in as a third-party outsider and demand visitation. In reality, these cases are almost always brought up when a parent has died, is in jail or has extreme problems (drugs or mental illness).
Another big hurdle is put up by 750 ILCS 602.9(c)(4) in that “A petition for visitation privileges may not be filed pursuant to this subsection (c) by the parents or grandparents of the child if parentage between the child and the related parent has not been legally established.”
Parentage is not determined by saying “he has my son’s eyes” or even “my son is on the birth certificate.” In the absence of marriage, a party must get a court order establishing parentage. If the party is not available because of death, jail or mental illness, it will be very difficult to provide adequate testimony (intimate relations 9 months prior to the birth of the child) that the alleged parent is the biological parent.
If the grandparent is able to overcome these hurdles, the court will consider the following factors in awarding visitation:
“(A) whether the child resided with the petition for at least 6 consecutive months with or without a parent present;
(B) whether the child had frequent and regular contact or visitation with the petitioner for at least 12 consecutive months; and
(C) whether the grandparent, great-grandparent, sibiling, or step-parent was a primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month period immediately preceding the commencement of the proceeding.” 750 ILCS 602.9(c)(2)
So, if you’re a long-lost grandparent who has never seen their grandchild and you’re using the courts to establish a relationship that child for the first time…it’s going to be really difficult.
Additionally, if a grandparent is not getting visitation currently it must be because a parent is denying that visitation and the statute says that “There is a rebuttable presumption that a fit parent’s actions and and decisions regarding grandparent…visitation are not harmful to the child’s mental, physical or emotional health. The burden is on the party filing a petition under this section to prove that the parent’s actions and decisions regarding visitation will cause undue harm to the child’s mental, physical, or emotional health.” 750 ILCS 602.9(b)(4)
Overcoming the parent’s objections to grandparent visitation will require the following considerations:
“In determining whether to grant visitation, the court shall consider the following:
- (A) The wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to visitation;
- (B) The mental and physical health of the child;
- (C) The mental and physical health of the grandparent, great-grandparent, sibling, or step-parent;
- (D) The length and quality of the prior relationship between the child and the grandparent, great-grandparent, sibling or step-parent;
- (E) The good faith of the party in filing the petition;
- (F) The good faith of the person denying visitation;
- (G) The quantity of visitation time requested and the potential adverse impact that visitation would have on customary activities;
- (H) Any other fact that establishes that the loss of the relationship between the petition and the child is likely to unduly harm the child’s mental, physical, or emotional health; and
- (I) Whether visitation can be structured in a way to minimize the child’s exposure to conflicts between the adults.” 750 ILCS 602.9(b)(5)
Needless to say, sex offenders and people who have been convicted of murdering their children cannot pursue visitation of their grandchildren pursuant to 750 ILCS 602.9(e) and 750 ILCS 602.9(f).
Finally, the specter of that old 2002 Supreme Court case, Wickham vs. Byrne, can still stymie a grandparents’ quest for visitation time.
The fourteenth amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1. The due process clause grants “heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702. One of the fundamental rights protected under the fourteenth amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion. Troxel v Granville, 530 U.S. 57. Decisions concerning care, custody, and control include, for example, decisions about a child’s education, religion, and general upbringing. Lulay v Lulay, 193 Ill.2d at 455.
Specifically the United States Supreme Court case Troxel vs. Granville required that a parent’s decisions be considered primarily over the standard of the best interests of the child.
“In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decisions of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel vs Granville 530 57 at 70
The old Illinois Marriage and Dissolution Act before the re-write in 2016 primarily considered the best interests of the child NOT the parent’s wishes. The new statute is very clear that the parent’s wishes are the court’s primary consideration and the grandparent must overcome the parent’s objections to their visitation via the considerations listed in the statute.
Is the new Illinois Marriage and Dissollution statute constitutional or not? That hasn’t been determined by the court yet but it is only a matter of time before some parent brings up the constitutionality issue and grandparents’ visitation rights possibly disappear in Illinois again. So, my advice would be to lock in your grandparents’ visitation rights while you can.