Grandparent and Third-Party (Non-Parent) Rights to Children in Illinois
Do Non-Parents Have Standing to Bring a Petition for Allocation of Parental Responsibilities in Illinois?
Yes, but only in certain limited circumstances. The amended Illinois Marriage and Dissolution of Marriage Act provides that a non-parent can file a petition for allocation of parental responsibilities in the county where the child is located, if the child is not in the physical custody of one of his or her parents. 750 ILCS 5/601.2(b)(3)
Grandparents are given standing to, or a right to, seek parental responsibility of a child if one of the parents is deceased and one or more of the following conditions existed at the time of the parent’s death:
- The surviving parent had been absent from the marital home for more than one month without the spouse knowing his or her whereabouts;
- The surviving parent was in state or federal custody; or
- The surviving parent has been convicted of various criminal offenses described in the statute or violation of an order of protection. 750 ILCS 5/601/2(b)(5)
Stepparents are given standing to seek parental responsibility if:
- The parent who has had the majority of time with the child is dead or disabled;
- The stepparent provided care for the child prior to filing a proceeding seeking parental responsibility;
- The child wishes to live with the stepparent; and
- It would be in the best interest of the child to live with the stepparent. 750 ILCS 5/601.2(b)(4)
What if I Do Not Meet the Requirements for Standing to Bring a Petition for Allocation of Parental Responsibilities?
You may be able to petition the court to force a parent to let the child spend time with you through court-ordered visitation. Visitation is defined as “in-person time spent between a child and the child’s grandparent, great-grandparent, sibling, stepparent or any person designated under subsection (d) of Section 602.7 of the Illinois Marriage and Dissolution of Marriage Act.” 750 ILCS 5/609.9(a)(4)
A grandparent, great-grandparent, stepparent or sibling may seek visitation rights with a child, either as part of a pending action between the parents or independently if no action has been initiated between the parents. In the event no action is pending, the third-party visitation action must be brought in the county where the child lives.
A qualified person may only bring a third-party petition for visitation if there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical or emotional harm. The Illinois Marriage and Dissolution of Marriage Act provides a rebuttable presumption that a fit parent’s decision denying third-party visitation is not harmful to the child. The party seeking visitation has the burden of establishing that the parent’s decision will cause harm to the child. 750 ILCS 5/602.9(b)(4)
Specific conditions must exist for grandparents, great-grandparents, stepparents and siblings to have standing to seek visitation:
- The child must be at least one (1) year old;
- One of the child’s parents must be:
- Deceased or missing for at least 90 days
- Incompetent as a matter of law, or
- Incarcerated for a period in excess of 90 days
- In the event the parents are divorced or separated or a parentage judgment exists, one of the parents must consent to the visitation and any time granted cannot diminish the time of the other parent. 750 ILCS 5/602.9(e), 5.609.2(f)
The court must also consider a variety of factors before determining whether to grant visitation. These factors include:
- The wishes of the child, all parties’ respective motives and the history of the child’s relationship with the party seeking visitation;
- The impact visitation would have on the child’s activities and the potential exposure of the child to conflict;
- The child lived with the petitioners for at least six consecutive months (with or without a parent)
- The child had regular contact with the petitioner for at least 12 months, and
- The petitioner was a primary caretaker for the child for at least six months within the preceding 24-month period. 750 ILCS 5.602.9(c)(2)
If you would like to learn more about your rights as a grandparent or stepparent, please contact the helpful, compassionate family law professionals at the Conniff & Keleher, LLC.
For more information on this topic, check out our infographic showing your rights as a non-parent.