Grandparent, Siblings, And Third Party Visitation Rights Under The Illinois Marriage And Dissolution Of Marriage Act (“IMDMA”)
Not many people think about grandparents, great-grandparents, or siblings in the divorce context, but believe it or not, these third parties have visitation rights as well. Oftentimes parents will depend on grandparents for child care. As a result, grandparents will often develop very strong bonds with the children at issue. A divorce of a grandchild’s parents can quickly and profoundly change the nature and quality of the contact between the grandparent and their grandchildren. In certain scenarios, grandparents can file petitions to assert their rights to visitation, and the court will grant them the opportunity to see their grandkids.
Visitation Rights Of Grandparents, Great-Grandparents, And Siblings To Visitation Under the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) Section 607
Visitation rights of grandparents, great-grandparents and siblings*** are found in 750 ILCS 5/607, pertaining to visitation in general. Section 607(a-3) states that grandparents have the legal right to file a petition for visitation, or for the right to have electronic communications (i.e., Skype, Apple FaceTime, etc. ) with their grandchild, so long as the grandchild at issue is at least one year old.
To bring such a legal petition, a few conditions must be met. First, there must be an unreasonable denial of visitation. This factor is somewhat of a moving target. What denial of visitation is unreasonable? How much of a right do grandparents have to intrude upon the parent’s right to make decisions regarding the child? This question is usually answered in the context of past visitation, by comparing the grandparents’ historic visitation versus the visitation time at the time of filing and the parents’ justification. (e.g., going from 10 hours per week to 20 minutes.)
Along with an unreasonable denial of visitation, one of the following must also occur: 1) a child’s parent is deceased or missing for 3 months; 2) a parent is incompetent as a matter of law; 3) a parent is in jail for at least 3 months; 4) parents of the child are divorced, separated, or in the process of divorcing; or 5) the parents are not married, a child is born out of wedlock, and in the case of the father, paternity is established.
In practical terms, if the grandparents through the non-custodial parent in a divorce are being denied visitation by the custodial parent, they can appropriately bring a petition to establish visitation.
Deference To Parents And The Burden Of Proof
IMDMA Section 607(a-5) creates a presumption that a fit parent’s actions and decisions regarding grandparent visitation do not harm the child’s health. This means that what the parent’s decide regarding how often (if at all) the child sees his or her grandparents are, by default, in the children’s best interests. It is up to the grandparents to prove to the court that the parents are making harmful decisions.
The court will look to a variety of factors in determining whether to side with the grandparents, including the preference of the child (if they are mature enough); the mental and physical health of the child; the mental and physical health of the grandparent; the length and quality of the prior relationship between the child and the grandparent; the good faith of the party in filing the petition; the good faith of the person denying visitation; the quality of the visitation time requested and the potential adverse impact on the child’s customary activities; whether the child resided with the grandparent for at least 6 months; whether the grandparent had regular contact with the child during the previous 12 months; whether the grandparent was the primary caretaker of the child of any 6 month period; and any other factor that might harm the child’s mental, physical or emotional health.
How can grandparent visitation be subject to abuse? We commonly think of grandparent visitation being only well intentioned. However, there are some divorce/custody cases where one parent is being denied or has restricted visitation in order to protect the physical, mental or emotional health of the child. Grandparents’ visitation that is being to get around the court’s orders restricting visitation and facilitate contact between the child and the non-custodial parent can result in the grandparent’s
If a grandparent seeks to establish or modify child visitation in bad faith, the court can award attorney’s fees to the prevailing party. The petition must be considered “vexatious” (defined as a legal action initiated maliciously and without probably cause) and intended to cause harassment.
*** These laws apply generally to grandparents, great-grandparents, and siblings. For the sake of simplicity, I only refer to grandparents.