Grandparents’ Rights in Illinois: Visitation and Custody Explained

• Do grandparents have legal rights to children in Illinois?
• Do grandparents have visitation rights?
• What qualifications do grandparents have to meet?
• Factors the court considers
• How and when could grandparents get child custody?
• FAQ
• References

Illinois laws prioritize the child’s best interests. In divorce scenarios, the courts do their best to make arrangements that benefit the physical, mental, and emotional needs of children. Typically, that means keeping young people with one parent and ordering them to have visits with the other. 

For grandparents, it’s a little different. If you want to use the court to help you get visitation with or even custody of a grandchild, you must prove that your plan would serve the best interests of the children. That’s not always easy to do.

In severe cases, grandparents can step up and take custody of their grandchildren. Typically, these situations take place when parents have faced some kind of extreme hardship (such as incarceration) or are not providing a home that is suitable for a child. 

Do grandparents have legal rights to grandchildren in Illinois? 

Illinois courts typically prioritize the rights of a child’s biological parents. These adults generally are encouraged to make decisions about where and how their children live. As a grandparent, you may have opinions about your grandchildren, but your rights are rarely considered more important than parental rights. 

Similarly, Illinois courts typically assume that a parent’s visitation choices will be in the best interest of the child. Grandparents also have rights, but their wishes aren’t considered more important than those of the child’s parents. 

Important exceptions to these rules exist. The courts are required to make decisions that benefit children. Sometimes, that means allowing grandparents to take full custody of a child. Other times, it means making sure grandparents retain access to children through electronic or in-person visits. 

Do grandparents have visitation rights in Illinois?

Illinois laws recognize that extended family members, including grandparents, can play an important role in a growing child’s life. While grandparents aren’t legally entitled to the same rights a parent has, they’re not without power. 

A grandparent could theoretically use the court to try to maintain a regular visitation schedule. But if one or both parents don’t want those visits, it would be up to the grandparents to prove to the court that they make the child’s life better. 

In other words, to access your right to visitation as a grandparent with the court’s help, you must prove to the court that your presence is both helpful and wanted by your grandchild. 

What qualifications do grandparents have to meet for court-ordered visitation rights?

Let’s say you want to see your grandchild, but the child’s parents don’t want you to. If you can’t create an equitable arrangement, you could try to ask the court for visitation rights. You would file a petition asserting (and ideally, proving) that the absence of visits with you causes the child physical, mental, or emotional damage. 

You would also have to prove, per Illinois law, that one of the following conditions exists:

• The parent of the child has been missing for at least 90 days or is deceased.
• The parent of the child is legally incompetent.
• The parent has been incarcerated for more than 90 days. 
• The parents are legally separated or divorced, and at least one party doesn’t object to the visits.

These rules are very strict, and you can’t ignore them. If you want to see your grandchildren but can’t prove that your presence is required, the court will likely reject your claim. 

Factors the court considers

A court can consider the following factors when evaluating your request:

• Whether the child lived with the petitioner for at least six months, the petitioner has visited regularly, or the petitioner is a caretaker 
• The wishes of the child (as appropriate) 
• The mental and physical health of the child 
• The mental and physical health of the grandparent 
• The length and quality of the grandparent-grandchild relationship 
• The good faith of the person filling out the petition 
• The good faith of the person who denies the visits 
• The number of visits requested and how it might impact the child 
• The potential harm the loss of this relationship might cause the child 
• Whether visits can be structured to minimize a child’s exposure to adult conflict

Every court case is different. If you’re hoping to visit an infant child, for example, the court might not examine what the baby wants and the strength of your relationship with them. But if you have close ties with an articulate adolescent, that young person could speak up about why you should be allowed to visit. 

Your willingness to work with the parents matters, too. If you’re proposing plans that cause disruption (such as asking for every holiday or requiring a parent to drive 60 miles each way for the visit), you’re less likely to be successful. Think of how you can make the petition as appealing as possible by taking on as much of the burden of visits (such as traveling to the child) as possible.

How and when would grandparents get custody of a child?

Illinois laws try to keep parents and children connected. Courts assume that parents do their best to raise healthy, happy children. But judges also recognize that some parents just can’t provide the right environment for their kids. 

People with these characteristics are typically considered unfit parents per Illinois law:

• History of child abandonment or desertion 
• Inability to maintain a reasonable amount of interest, concern, or responsibility in the child’s welfare
• Proof of repeated child neglect or abuse 
• Murder or serious crime convictions 
• Habitual drug or alcohol abuse 
• Reluctance to correct issues that caused the child’s removal in the past
• Willingness to give up parental rights
• Inability to provide a physically and financially stable home 

If both parents are unfit, grandparents may be able to step in and care for the child. Children in homes like this may already be in temporary custody in Illinois. If so, grandparents could ask for those children to enter their care. 

If the child remains at home, and law enforcement agencies haven’t contacted the parents for any of the issues listed, it’s harder to prove that the child needs a custody switch. These cases can be complex and time-consuming. But persistence could help you ensure your grandchild has a brighter future. The court will always aim to rule in the child’s best interest.

Frequently Asked Questions

Can grandparents sue for visitation or custody in Illinois?

Yes. Grandparents can ask the court to offer visitation rights or full custody, even if parents disagree. It’s not always easy to win these cases, as state law prioritizes the wants and needs of parents above almost everything else, provided they serve the best interests of the child.

Can parents deny grandparents visitation? 

Yes. Illinois laws protect the rights of parents to raise their children as they see fit. A parent could deny a grandparent visitation without providing any reasonable explanation. As long as the grandparent can’t prove that this arrangement harms the child, or that the parent is unfit in some way, the arrangement could continue indefinitely. 

References