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Visitation Rights of Grandparents and Other Non-Parents

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By: Megan Dooly

Under 750 ILCS 5/602.9 of the Illinois Marriage and Dissolution of Marriage Act, grandparents, great-grandparents, siblings, and step-parents can bring actions to establish visitation with a minor child in certain circumstances.

Does the Statute Apply to All Children?

No. There are certain instances where a child is exempt under this statute, including:
• A child with a petition pending under Section 2-13 of the Juvenile Court Act of 1987;
• A child whom an unrelated person has a pending adoption for under the Adoption Act;
• A child who has been voluntarily surrendered by the parents, except a surrender to the Illinois Department of Children and Family Services or a foster care facility;
• A child who was previously adopted by an individual not related to the child’s biological parents or have a pending adoption petition; or
• A child who was relinquished pursuant to the Abandoned Newborn Infant Protection Act.

Who Can File a Petition?

Grandparents, great-grandparents, step-parents (meaning a person married to the child’s parent currently or immediately prior to the parent’s death), and siblings (including half-siblings) can file a petition for visitation so long as one of the following conditions are met:
• The child’s other parent is deceased or has been missing for at least 90 days;
• A parent of the child is legally incompetent;
• A parent has been incarcerated for over 90 days immediately prior to the filing of the petition;
• The child’s parents have been granted a dissolution, have been legally separated, or there is a pending dissolution or other court proceeding involving parental responsibilities and visitation (such as a modification), so long as one parent does not object to said visitation; or
• The child is born to unmarried parents, the parents are not living together, and the Court has established parentage.

Any of the above-mentioned individuals who has been convicted of a sex offense or first-degree murder is not eligible to receive visitation under the Act.

When Can a Petition Be Filed?

A Petition can be filed as a new matter with the Circuit Court in the county where the child resides. The Petition may also be filed in a pending dissolution proceeding or any other proceeding that involves parental responsibilities or visitation issues, such as a modification. 750 ILCS 5/602.9(b).

What is the Standard for Granting Visitation?

The statute provides that a petition may be filed “only if there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical, or emotional harm.” 750 ILCS 5/602.9(a)(3).

There is a rebuttable presumption that a fit parent’s actions and decisions regarding visitation are not harmful to the child. Therefore, the burden is on the party filing the petition to show the parent’s actions will cause undue harm to the child’s mental, physical, or emotional health.

What Factors Do Courts Consider?

The Court considers the following factors in determining whether to grant visitation:
• The wishes of the child, considering the child’s maturity and ability to express reasoned and independent preferences regarding visitation;
• Mental and physical health of the child;
• Mental and physical health of the grandparent, great-grandparent, sibling, or step-parent;
• Length and quality of the prior relationship between the child and petitioner;
• The good faith of the party in filing the petition;
• The good faith of the person denying visitation;
• Quality of the visitation time requested and the potential adverse impact that visitation would have on the child’s customary activities;
• Any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to unduly harm the child’s mental, physical, or emotional health;
• Whether visitation can be structured in a way to minimize the child’s exposure to conflicts between adults;
• Whether the child resided with petitioner for at least 6 consecutive months, with or without a parent present;
• Whether the child had frequent and regular contact or visitation with petitioner for at least 12 consecutive months; and
• Whether the petitioner was a primary caretaker of the child for no less than 6 consecutive months within a 24-month period immediately preceding the filing of the petition.

What Kind of Visitation Time Can I Receive?

The Court will determine the visitation schedule based on the best interests of the child. The visitation must not diminish the parenting time of the parent who is unrelated to the petitioner. The Court does not have to grant overnight or possessory visitation to the petitioner.

If visitation rights are granted and, subsequently, a parent’s parental rights are terminated or an adoption of the child is granted, any visitation rights are automatically terminated.