Grandparents Visitation Rights: Recent Ruling Allowing Visitation

Illinois law not only addresses parents’ visitation rights in custody issues, but also grandparents visitation rights.  A question that grandparents may have from time to time is whether they have the right to a visitation schedule with their grandchildren.  This is a developing area of law and a recent case in November 2014 helps illustrate the factors that courts will consider when determining whether grandparents may be granted a visitation schedule.

In its recent decision, Robinson v. Reif, 2014 IL App (4th Dist., Nov. 24, 2014), the Illinois trial court found and the Illinois Appellate court later affirmed that it would be harmful to the children if their relationship with their grandparents ceased to exist and, therefore, awarded grandparents temporary and permanent visitations with their grandchildren.

In Robinson, grandparents, Plaintiffs, filed a Petition for Temporary and Permanent visitation with their grandchildren. Plaintiffs’ daughter was killed in a car accident and her husband, Defendant, was severely injured and spent 18 months in a hospital. At the time of the accident the oldest child was age of 3 and the youngest was age of seven months. Plaintiffs took on full parenting responsibilities for their grandchildren and raised the children for 18 months following their daughters’ death and defendant’s hospitalization. After Defendant recovered and remarried, he regained custody of the children and deprived the grandparents of visitations with the children (by the time Defendant regained custody of the children, his relationships with Plaintiffs were irreparably damaged due to the custody battle where Plaintiffs sought to keep custody of the children but ultimately lost).

Defendant in this case argued that his decisions regarding grandparents’ visitation were not harmful to the children’s mental, physical, or emotional health. Defendant further argued that under section 607(a-5)(3) of the Illinois Marriage and Dissolution of Marriage Act, “there is a rebuttable presumption that a fit parent’s actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child’s mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent’s actions and decisions regarding visitation times are harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(3). Such presumption derives from the due process clause of the fourteenth amendment to the United States Constitution, which “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 68 (2000)

In making a determination as to whether it would be harmful to the children’s mental, physical, or emotional health if their relationship with Plaintiffs ceased to exist, the trial court considered the following factors:

a) The preference of the children if the children are determined to be of sufficient maturity to express a preference;

b) The mental and physical health of the child;

c) The mental and physical health of the grandparent, great-grandparent, or sibling;

d) The length and quality of the prior relationship between the child and the grandparent, great-grandparent, or sibling;

e) The good faith of the party in filing the petition;

f) The good faith of the person denying visitation;

g) The quantity of the visitation time requested and the potential adverse impact that visitation would have on the child’s customary activities;

h)   Whether the child resided with the petitioner for at least 6 consecutive months with or without the current custodian present;

i) Whether the petitioner had frequent or regular contact or visitation with the child for at least 12 consecutive months;

j)   Any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child’s mental, physical, or emotional health; and

k) Whether the grandparent, great-grandparent, or sibling was a primary caretaker of the child for a period of not less than 6 consecutive months.”  750 ILCS 5/607(a-5)(4).

 

Based upon these factors and all the evidence presented in court, the trial court in this case found that it would be unreasonable to completely cut all ties with the grandchildren and deprive grandparents of any visitations with them. The court stated that children formed an attachment to Plaintiffs during the 18 months that Plaintiffs raised them following the car accident and that the children would be damaged emotionally if deprived of all visitations with Plaintiffs. The court then awarded the following visitation rights to Plaintiffs: (1) a weekly, unsupervised phone call; (2) a seven-day visit every June in Decatur; and (3) weekend visits in New Mexico once every April, October, and December.

The Illinois Appellate court later affirmed trial court’s decision to award grandparents temporary and permanent visitation rights with their grandchildren.

 

To schedule a consultation with a dedicated and experienced family law attorney serving Will County, Dupage County, and Kendall County, call us today at (815) 207-9570 or (815) 409-8858.

The information on this site is not legal advice.  Retain an attorney licensed in the state which has jurisdiction over your matter before taking any action which affects your legal issues, legal marital status or custody arrangements, and follow the advice of your retained lawyer.