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Grandparents Rights to Visitation after a Divorce

 Posted on September 25, 2015 in Child Custody

Divorce can be challenging and emotional for everyone involved - including grandparents. When parents divorce, courts are required to approve arrangements regarding custody and visitation, including decision-making power and the time that each parent gets to spend with the children. However, parents and children are not the only ones whose families are changing. Often grandparents struggle to understand their new role after a divorce and, in some circumstances, grandparents may be restricted or prevented from seeing their grandchildren. One option for grandparents who are prevented from having a relationship with their grandchildren is to seek visitation.

Non-Parent Visitation

Illinois law provides visitation for certain "non-parents" including grandparents. Those who want visitation can file a petition with the court requesting visitation.

The law establishes a presumption that the parents' actions and decisions regarding visitation are not harmful to the child's mental, physical, or emotional health. Therefore, the court will presume that a parent or parents who prevent children from seeing grandparents are not causing any harm to the children. In order to be granted visitation, grandparents must prove that the parents' decision to prevent or restrict the relationship will cause undue harm to the child's mental, physical, or emotional health. In assessing the case, the court will review:

  • The child's wishes;
  • The child's physical and mental health;
  • The grandparents' physical and mental health;
  • The length and quality of the prior relationship between the child and the grandparents;
  • The grandparents' good faith in filing the petition;
  • The parents' good faith in restricting or preventing visitation;
  • The amount of visitation requested;
  • The potential adverse impact of visitation on the child's customary activities;
  • Any other fact that establishes that the lack of a relationship between the grandparents and child is likely to unduly harm the child's mental, physical, or emotional health; and
  • Whether visitation can be structured so as to minimize the child's exposure to conflicts between the adults.

Grandparent Visitation

Grandparents are also eligible to file a different petition - a petition for visitation and electronic communication. Those petitions are available when there has been an unreasonable denial of visitation by the child's parent(s) and one of the following has happened: the child's other parent has died, a parent is incompetent, a parent has been in prison for at least three months, or the child's parents have gotten a divorce or legal separation.

In those cases when making a decision regarding visitation, in addition to the factors listed above, the court will also consider:

  • Whether the child resided with the grandparents for at least six months, whether or not the parents were also present;
  • Whether the child had frequent or regular contact with the grandparents for at least 12 months; and
  • Whether the grandparents were primary caretakers of the child for at least six months within the previous two years.

Divorce can be difficult emotionally, but it can also be confusing. If you have questions about what your rights are after a divorce, an experienced divorce attorney can help. Contact the skilled DuPage County family law attorneys at The Stogsdill Law Firm, P.C. for a consultation.



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