Grandparents´ Rights

IN THE PAST 25 YEARS, FEW AREAS OF FAMILY IN THE PAST 25 YEARS, FEW AREAS OF FAMILY LAW HAVE CHANGED MORE DRAMATICALLY THAN THOSE CONCERNING GRANDPARENTS.

Between 2005 and 2007, the Illinois Legislature passed a series of amendments to the Illinois Marriage and Dissolution of Marriage Act addressing grandparent visitation. In Flynn v. Henkel, 227 Ill.2d 176 (Ill. 2007), the Illinois Supreme Court ruled on some of these amendments, lending tremendous insight into the Illinois Supreme Court's current opinion on grandparent visitation. Effective January 1, 2007, the Illinois Legislature passed the following series of amendments concerning grandparent visitation:

1. The Grandparent Visitation Act no longer applies to children less then one year old. 750 ILCS 5/607(a-3).
2. The new amendment contains a specific venue provision such that "[a] petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides." 750 ILCS 5/607(a-3).
3. The statute now allows a grandparent to petition for visitation during a "pending dissolution proceeding or any other proceeding that involves custody or visitation issues." 750 ILCS 5/607(a-3).
4. A grandparent will be able to petition for visitation if a parent "has been missing for at least 3 months."750 ILCS 5/607(a-5)(1)(A-5).
5. The statute allows for a grandparent to petition for visitation if the parent has been "incarcerated in jail or prison during the 3 month period preceding the filing of the petition." 750 ILCS 5/607(a-5)(1)(A-15).
6. If a child is adopted by a relative or a stepparent, a grandparent still has standing to petition for visitation after the adoption, which is in stark contrast to the old law which forbade a grandparent to petition for visitation after the child had been adopted. 750 ILCS 5/607(a-5)(1)(B).

In Flynn, the Illinois Supreme Court interpreted the new laws to mean that a grandparent seeking court-ordered visitation must prove that the child's mental, emotional, or physical health will be harmed if visitation is denied, and the fact that a child simply will be cut off from one side of the family if visitation is stopped is not enough to prove harm to the child. For now, Flynn is the controlling opinion for grandparents seeking visitation in Illinois, although the constitutionality of these new provisions has not yet been challenged. (Practitioners will recall that in 2002, n Wickham v. Byrne,

199 Ill.2d 309 (Ill. 2002), the Illinois Supreme Court held the prior grandparent visitation statute unconstitutional on its face because it infringed on the natural parents' fundamental right "to make decisions concerning the care, custody, and control of their children without unwarranted statute intrusion.")

This article is adapted from Chapter 12 of the 2008 Edition of Advising Elderly Clients and Their Families (IICLE, 2008), which chapter was authored by Andrea K. Muchin of Schiller DuCanto & Fleck LLP, with assistance from law clerk Eric T.Saar.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.