Illinois Grandparents' Rights

Petitioners Must Meet a Rigorous Harm Standard

grandparent visitation in Illinois
Grandparents in Illinois must meet an exacting harm standard if they sue for visitation with a grandchild. Photo © JGI/Tom Grill | Blend | Getty Images

Illinois has had a grandparent visitation law since 1981, but it has been plagued by legal challenges.

For years it was the case in Illinois and elsewhere that grandparents were expected to gain access to their grandchildren through the parent who was their child. Grandparent visitation laws were enacted mainly for cases in which access through the parent was impossible. If the parent was deceased, incarcerated or on active military duty, grandparents could sue to see their grandchildren, because their usual access would be cut off.

Gradually some more atypical cases arose and were presented to the courts, and that is when the legal waters began to get murky. 

Legal Challenges

The case of Troxel v. Granville, decided by the U. S. Supreme Court in 2000, had an impact on grandparent visitation laws in virtually every state. In this case, the justices decided that the Washington State law in question did not give enough weight to the wishes of parents. A long-standing legal principle declares that parents have the right to the care, control and custody of their children. In the wake of Troxel v. Granville, many state judicial systems were forced to consider whether their grandparent visitation statutes violated that principle.

The Illinois state statutes were challenged and ultimately declared unconstitutional in three important cases decided from 2000-2002. (You can read more about those cases near the end of this article.) The result was that new legislation was passed in Illinois in 2005 to meet a tougher standard of constitutionality.

This law was further modified in 2007, and that is the law that governs grandparents seeking visitation in the state of Illinois today.

Current Law

The good news is that after a period of limbo, grandparents once more have the legal right to sue for visitation in Illinois. The bad news is that the Illinois statutes are quite long and complex and contain a number of stipulations.

The statutes make it very plain that the burden of proof is on the grandparent seeking visitation. First of all, grandparents must establish that they have standing to petition the court for visitation.

The Question of Standing

The Illinois statutes also apply to great-grandparents and siblings. These interested parties may ask for visitation in conjunction with an existing divorce, custody or visitation suit, or a separate petition can be filed. In order for these third parties to have standing to sue for visitation, there must have been an "unreasonable denial of visitation." Exactly what constitutes an unreasonable denial is not specified. Also, the child with whom visitation is being sought must be at least one year old.

If grandparents can establish that they have been denied visitation, they will fall into one of two categories.

The first category includes those seeking visitation because they do not have access through the parent who is their child. The parent who would normally give them access is deceased, has been reported to law enforcement as missing, is legally incompetent or is incarcerated. Grandparents who fall into this category have a somewhat easier path to visitation than those in the following category.

The second category involves parents who are divorced, divorcing or separated.  Grandparents can sue for visitation as long as one of the parents does not object to the visitation. If both parents oppose visitation, the grandparent does not have standing.

In the case of a child born out of wedlock, the maternal grandparents may request visitation. Paternity must be established before the paternal grandparents may be allowed visitation.

The Harm Standard and Other Considerations

Once the grandparents have established standing, they come up against what is known as the harm standard. To bring the Illinois statutes in line with Troxel v. Granville, the law includes a provision that the burden of proof is on the grandparent or other petitioner. The petitioner must prove that the denial of visitation has caused the child "undue mental, physical, or emotional harm." This is a tough standard to meet, as perusal of some of the court cases below will show.

The law also lists a number of considerations that can impact the court's decision. These include:

  • The child's preference, if the child is old enough to express an opinion
  • The mental and physical health of the child
  • The mental and physical health of the person seeking visitation
  • The "length and quality" of the relationship between the child and the person seeking visitation
  • Whether the petition has been filed in "good faith"
  • Whether the parent's denial of visitation was made in "good faith"
  • How much visitation is being requested and whether such visitation would impact the child's normal activities
  • Any other details showing that loss of the relationship with the petitioner could harm the child's physical, emotional or mental health
  • Whether visitation can be structure in such a way as to minimize the child's exposure to conflict between the adults.

In addition, in deciding how strong the petitioner's claim is, the court is directed to consider the following:

  • Whether the child resided with the petitioner, with or without the parent, for a period of six or more months
  • Whether the petitioner was the child's regular caretaker for at least six months, with the period of caregiving falling within the 24 months prior to the filing of the suit
  • Whether the petitioner had regular or frequent contact with the child for at least 12 consecutive months.

Other Stipulations

Illinois statutes contain a number of other stipulations about grandparent visitation. 

One such provision states that the third-party visitation cannot be allowed to diminish the contact time of the non-custodial parent.

Another provides that visitation rights will be automatically terminated if parental rights are terminated or if the child is adopted, unless adopted by a relative.

The law also states that visitation is not necessarily overnight or "possessory." In other words, a grandparent may simply be allowed to see a child but not to take temporary possession of the child. Visitation can take the form of electronic communication.

Modifications of Visitation

The law also contains stipulations that are intended to prevent grandparents and other third parties from asking for frequent modifications in visitation. No requests for modification can be filed within two years of the original suit, unless specific circumstances exist. The court can require third parties seeking modification of visitation to pay attorney fees and costs if the suit is found "vexatious" or if the court finds that the suit was filed for purposes of harassment.

The 2000-2002 Cases

The following three cases are the ones that dealt with the issue of constitutionality in the wake of Troxel v. Granville.

  • Lulay v. Lulay (2000). In this case, the paternal grandparents sued for visitation. The parents, although divorced, were united in their opposition to visitation. The Illinois Supreme Court decided that the law had been unconstitutionally applied and could not be used to force visitation when both parents were opposed. They did not declare the visitation statute facially unconstitutional, however, which would have meant that it was unconstitutional in all applications.
  • Wickham v. Byrne (2002) and Langham v. Langham (2002). The Illinois Supreme Court ended up consolidating these two cases, which were very similar. In both of these cases, parents of a deceased parent sought visitation with grandchildren. In both cases, the surviving parent agreed, but the parties could not agree about the amount and circumstances of visitation. The cases ended up in court. The Illinois Supreme Court ultimately decided that it could not deny a single parent the same consideration that it had given to two parents in Lulay v. Lulay. Thus the court had no choice but to declare the law facially unconstitutional. 

Some Important Post-Troxel Cases

From 2005, when the law was amended, until 2014, no grandparents were able to win a visitation case, due to the stringency of the new law. Here are two cases that failed and one that finally succeeded in meeting the harm standard. 

  • Flynn v. Henkel (2007). This case demonstrates just how restrictive the Illinois law has proven to be. In this case the grandmother made extensive efforts to stay in contact with her grandchild, sending baby items to the mother before the baby was even born. But when the child's mother denied her visitation, the court found that the grandmother had not met the harm standard. The Illinois Supreme Court found that "never knowing a grandmother who loved him" did not constitute harm to the child.
  • Dandurand v. Pitej (2013). A couple that had a child out of wedlock entered into a visitation agreement that allowed the father's mother access to the child on the same weekends that he father had visitation. About a year later, the mother alleged that the child's father had threatened her. She obtained an order of protection against him and also cut off contact with his mother, the child's grandmother. This case was more complex than Flynn v. Henkel, but the justices also decided against the grandparent, declaring that the harm standard had not been met.
  • Robinson v. Reif (2014). In this case the grandparents were finally victorious. Two children lived with their grandparents following a car accident that killed their mother and left their father impaired. When the father recovered and remarried, he and the grandparents fought for custody of the children. When the father won custody, he cut off contact with the grandparents. The Illinois appellate court decided in favor of the grandparents, noting the "unique grandparent-grandchild relationship" that resulted from the grandparents' extended period of acting as parents.  

See Illinois statutes.