Often, during a divorce or other type of custody dispute, grandparents can see their time with their grandchildren diminished. It’s also common for grandparents to fight for visitation when one or both parents are either unwilling or unable to care for the grandchildren. Grandparents sometimes assume that they have no legal recourse, but that’s not necessarily the case. Grandparents can file a petition for visitation rights. However, the situation in question must meet certain criteria for the court to consider the petition.
Illinois courts will consider a grandparent petition if at least one of the parents is not able to perform traditional parental duties. This could be because the parent is deceased or missing. To be considered missing, the parent must have been reported missing to legal authorities and his or her location must have been unknown for at least the three previous months. Grandparent visitation is also considered if a parent has been in jail for at least the three previous months or has been declared legally incompetent to be a parent.
There are also situations in which grandparents can get visitation even if both parents are in the picture. For example, if a child is born out of wedlock and the parents don’t live together, both maternal and paternal grandparents can petition for visitation. Paternity must be legally established before paternal grandparents can petition. Also, grandparents can petition for visitation if the parents are divorced and at least one of the parents supports the visitation request. The only stipulation is that the grandparents’ visitation time cannot cut into the visitation time with either parent.
Given those conditions, there is usually an opportunity for many grandparents to petition for visitation. Generally, courts will view those petitions much the same way they would a parental visitation petition. They will consider the best interests of the child as well as the child’s wishes. A family law attorney could help grandparents prepare their petition so that it has the best possible chance of being approved.
Source: Women’s Law, “State Custody Information“, November 04, 2014