Grandparents Rights Lawyer Chicago
What rights do grandparents have in Illinois?
Under the Illinois Marriage and Dissolution of Marriage Act, a grandparent may have standing to file a petition for allocation of parental responsibilities (i.e. decision making, formerly known as custody) in certain limited circumstances. First, a grandparent may be able to file as a non-parent only if the child is not already in the physical custody one of his/her parents. Second, a grandparent may be able to file as a grandparent if one of the parents is deceased and if one or more of the following existed at the time of the parent’s death: (1) the surviving parent has been absent from the marital home for more than one month without the spouse knowing his/her whereabouts; (2) the surviving parent is in state or federal custody; or (3) the surviving parent has received supervision for or has been convicted of violating certain laws directed toward the deceased parent for violating an order of protection for the protection of the deceased parent or child.
In addition, under the Illinois Marriage and Dissolution of Marriage Act, a grandparent may have standing to file a petition for visitation rights (i.e., parenting time) with the child in certain limited circumstances. First, a grandparent can only bring an action if one of the following conditions are met: (1) the child’s parent is deceased or missing for at least 90 days; (2) a parent of the child is incompetent; (3) a parent has been incarcerated for a period in excess of 90 days prior to the filing of the petition; (4) the child’s parents are divorced or legally separated or there is a dissolution of marriage action pending and involving a parent of the child or another Court proceeding involving parental responsibilities or visitation of the child (other than certain actions) and at least one parent does not object to the grandparent having visitation with the child; or (5) the child is born to unmarried parents, the parents are not living together, and parentage of the child has been determined. The grandparent must also establish two (2) elements to obtain visitation, first, that there has been an unreasonable denial of visitation by the parent and second, that the unreasonable denial has caused the child undue mental, physical, or emotional harm. There is a rebuttable presumption that a fit parent’s actions regarding grandparent visitation are not harmful to a child. Therefore, the burden is on the grandparent to prove this harm element, which can often be difficult to establish.
Grandparents can also seek other remedies outside of the Illinois Marriage and Dissolution of Marriage Act such as adoption or guardianship of a child under the Adoption Act and the Probate Act.
Does the non-custodial parent have a say about grandparents’ rights?
Yes, the non-custodial parent has a say by participating in the action. However, the Court may order certain remedies over a parent’s objection. For example, the Court may order a grandparent to have visitation rights or decision making responsibilities in certain limited circumstances with or without a parent’s agreement. A grandparent must have standing pursuant to the statute to pursue the relief he or she is requesting, and he or she will need to establish the necessary elements of the statute. Therefore, there are certain requirements and burdens that the grandparent must meet.
Could having a Chicago grandparents rights attorney help a grandparent get custody of their grandchild?
Yes. The provisions of the Illinois Marriage and Dissolution of Marriage Act that allow for grandparents to seek parental responsibilities and visitation are somewhat complicated and having a Chicago grandparents rights attorney will help the grandparent navigate the system, understand the process, and present the best legal claim to obtain the relief requested. In addition, having a Chicago family law attorney can help the grandparent successfully negotiate a settlement agreement, which may be preferable especially in situations where a grandparent is going to have to continue having a relationship with the other parent.
The grandparent and parent may be ordered by the Court to attend mediation to attempt to resolve the dispute or they may agree to participate in mediation. We advise our clients to have a Chicago grandparents rights attorney represent them at mediation so that we can provide them with the necessary legal advice throughout the process, which the mediator cannot do.