In Illinois, when parents are unable or unwilling to care for their children, grandparents often step in. But getting legal custody as a grandparent is not automatic, even if the child lives with you. In Illinois, grandparents can seek custody of their grandchildren under Illinois law but there are significant hurdles if a parent challenges grandparent custody.
The courts in Illinois are happy to grant a good grandparent (or anyone really) custody of the child but only if the parents are not already exercising custody.
“A proceeding for allocation of parental responsibilities with respect to a child is commenced in the court:…by a person other than a parent, by filing a petition for allocation of parental responsibilities in the county in which the child is permanently resident or found, but only if he or she is not in the physical custody of one of his or her parents” 750 ILCS 5/601.2(b)(3)
If the kids are living with a grandparent, but the parent is still in the children’s lives, the parent can object to the grandparent taking legal custody of the children.
“When a noncustodial parent has not been found unfit, and has regularly exercised visitation and demonstrated interest in the child, it is proper that noncustodial parent have custody.” In re Marriage of Brownfield, 283 Ill. App. 3d 728, 733 (1996)
The test of whether a parent can veto a grandparent’s attempt to establish custody hinges on whether the parent has “physical custody” of the child and when they had that “physical custody.”
“Whether a child “is not in the physical custody of one of his parents” is not subject to a clear test. It is clear, however, that physical custody is not determined based on physical possession of the child at time the custody petition is filed. Physical possession of a child does not necessarily translate into physical custody of that child.” In re Custody of MCC, 892 NE 2d 1092 – Ill: Appellate Court, 1st Dist., 1st Div. 2008
A parent’s “physical custody” of a child is better identified as when physical custody does not exist: when a parent has voluntarily abandoned the child.
“The determination that a parent does not have physical custody of a child turns not on possession; rather, it requires that that parent somehow has voluntarily and indefinitely relinquished custody of the child.” In re Petition of Kirchner, 164 Ill. 2d 468, 491 (1995), abrogated on other grounds by In re R.L.S., 218 Ill. 2d 428 (2006)
In determining whether the nonparent has established some measure of voluntary relinquishment, the trial court may also consider the following factors: “(1) who was responsible for the care and welfare of the child prior to the initiation of custody proceedings; (2) the manner in which physical possession of a child was acquired; and (3) the nature and duration of the possession.” Young v. Herman, 2018 IL App (4th) 170001, ¶ 54
In the real world, these cases are never easy. “[D]etermination [of physical custody] depends heavily on the particular facts of the individual case.” Matter of Kulawiak, 628 NE 2d 431 – Ill: Appellate Court, 1st Dist., 5th Div. 1993
For example, it is possible to “reassert[] [a parent’s] physical custody of [a child], which [they] had previously relinquished to grandparents.” Dumiak v. Kinzer-Somerville, 996 NE 2d 176 – Ill: Appellate Court, 2nd Dist. 2013
The analysis should always start with “who did the child live with at the time of the 750 ICLS 5/601.2(b)(3) filing?
“Whether a nonparent has the custody of the minor child is determined by examining the nonparent’s status on the date relief is sought.” In re Marriage of Archibald, 363 Ill. App. 3d 725, 736 (2006)
There is a limited exception to this general rule that who the child lives with determines physical custody. When a noncustodial parent has unilaterally removed a child from a situation similar to what the trial court found existed here, appellate courts have refused to allow that unilateral action to be dispositive of the physical custody finding. See Kulawiak, 256 Ill. App. 3d at 963 (holding the trial court must examine living conditions as they existed before unilateral action by a party to terminate prior arrangement as to physical custody); In re Custody of Peterson, 112 Ill. 2d 48, 53-54 (1986) (noting physical custody “should not turn on” who had the child when the custody petition was filed); Young, 2018 IL App (4th) 170001, ¶ 59 (finding that unilaterally obtaining physical possession of the child for approximately two months was insufficient to overcome the voluntary relinquishment of parental duties over the previous eight years).
Grandparents only really file 750 ILCS 5/601.2(b)(3) petitions after the ne’er-do-well parent reappears and takes the children away. This exception accounts for that reality.
“This limited exception prevents a petition for third-party custody from being preemptively defeated by the precipitous act of wresting a child away from his or her current custodian before a petition can be filed. Consequently, a custodian who had custody of the child but lost it due to such conduct may still utilize the statute under which custody gives rise to the right to file.” Mary Ann J. v. Preston C. 2025 IL App (4th) 241613-U
Sadly, if a grandparent cannot establish custody of their grandchildren in Illinois, the grandparent must subsequently petition for visitation of the children…which is even harder under current Illinois and U.S. Supreme Court law.
Whether you’re a grandparent already raising your grandchildren or just stepping in during a crisis, it’s crucial to understand your legal rights and the timing for filing. Illinois courts look closely at who has been the consistent caregiver for the children.
To better understand a grandparent, a parent and a child’s rights in Illinois, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois divorce attorney.
