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Grandparents Rights: What Happens if You Are Denied Access to Your Grandchildren?

grandparents rightsIllinois law states that grandparent visitation is a privilege, not a right. Under Illinois statute 750 ILCS5/602.9, you have the right to go to court and seek visitation, but the court is not required to grant it to you. Under Illinois law, you must show the court that a parent of the child has denied you visitation with the child and that the denial has caused undue mental, physical, or emotional harm.

As a grandparent, you have the right under Illinois law to ask a court to grant you visitation rights with your grandchild or grandchildren. The law does not state that your request will be granted; is just gives you the right to file a petition and ask for visitation rights.

Just because you are the biological grandparent, and you think you aren?t getting the time you deserve to spend with your grandchild, that isn?t enough for you to involve the court. You have to meet certain statutory criteria when filing a visitation request in order for it to be granted.

A grandparent must show that there has been an unreasonable denial of visitation by a parent, and that one of the following also exists:

  • The other parent is deceased or missing for at least 90 days
  • The other parent is incarcerated
  • The child?s other parent has been deemed incompetent
  • There is pending divorce or parental allocation (?custody?) proceeding pending between the parents of the child
  • The parents of the child were never married, but parentage has been established

The law presumes that the parent?s choice about who can and cannot spend time with their child is the correct choice, and is not harmful to the child?s mental, physical or emotional health. The grandparents seeking visitation have the burden of showing the court that it is harmful to the child to keep the grandparents away from the child.

The statute is only necessary if a parent of your grandchild refuses to grant you visitation. It is preferable for you to reach a visitation agreement without involving the court, even if you need the assistance of an experienced Illinois family law attorney to reach that agreement.

Statute Guidance

As previously stated, grandparent visitation is controlled by 750 ILCS 5/602.9. The statute not only provides the criteria for grandparents to seek visitation, but also the factors the judge uses to determine whether or not to grant visitation to the grandparent. These include:

  • The wishes of the child, taking into account maturity and ability to express reasoned and independent preferences as to visitation
  • Mental and physical health of the child
  • Mental and physical health of the grandparent(s) seeking visitation
  • The length and quality of the prior relationship between child and grandparents
  • The reason the custodial parent is denying visitation
  • Visitation time being sought
  • Other factors the court deems to be relevant

In addition to the above factors, which are enumerated in 750 ILCS 5/602.9(b)(5), the court also must look at the following factors in Section 602.9(c)(2) when dealing with specifically grandparents, great-grandparents, step parents, and siblings (as opposed to other non-parents):

  • Whether the child resided with the grandparent for six (6) consecutive months, with or without a parent present
  • Whether the child had frequent and regular visitation with the grandparent for at least 12 consecutive months, and
  • Whether the grandparent was the primary caretaker for the child for at least 6 consecutive months in the 2 years immediately prior to filing of the petition.

As you can see, grandparent visitation is not cut and dry. To learn more about your legal options that will help you foster a relationship with your grandchildren, you need to consult with a qualified family law attorney in your area. At Sherer Law Offices, our attorneys will advise you through the entire process so that you can get back to the loving relationship you have with your grandchildren.

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