Nonparents have little in the way of custody or visitation rights in Illinois. The law is set up to staunchly protect the rights of parents from interference by others, even their own parents. But this isn’t to say that grandparents don’t have any options at all. Certain relatives are considered one step above other nonparents, including grandparents, great-grandparents, siblings and stepparents. This is good news for the 100,000-plus grandparents who are raising their grandchildren in the state.
Grandparents’ Custody Rights in Illinois
Ideally, the child’s parent or parents will voluntarily give up their parental rights, effectively stepping aside and consenting to adoption by the grandparents. The parents might recognize that this is in the best interests of their children because they’re suffering from insurmountable problems at the time. The other option, and a more difficult road, is to prove to the court that the child is being abused or neglected by her parents. This can require the cooperation of the Illinois Department of Children and Family Services to substantiate the abuse or neglect, and it often involves involuntary termination of the parents’ rights.
In either case, the grandparent must file a petition with the court to request custody, and only someone with standing can do this. Standing means that the grandparent has a legal right to intercede because the child is already living with her, typically placed in her home by his parents. The grandparent is said to have physical possession of the child, and the arrangement is not considered to be temporary. This is just the first step, however. It merely allows a grandparent to become legally involved, but he must still prove his case in court.
When the Parent Is Deceased
A special Illinois law applies to grandparents whose child is deceased. If the location of the surviving parent has been unknown for at least 30 days prior to the other parent’s death, a grandparent does not have to have physical possession of the child to petition for custody. The same applies if the surviving parent is in a state or federal prison or has ever been convicted or placed under the supervision of a court for a variety of serious offenses against a child. In many cases, the victim can be any child, not necessarily the child for whom the grandparents hope to gain custody.
Obtaining Guardianship in Illinois
Another option recognized by Illinois law is guardianship, but the rules are just as stringent in most respects. The parent must relinquish custody and consent to guardianship by the grandparents, or at least fail to object to it. Involuntary termination of a parent’s rights is also a possibility in this situation.
DCFS will step in when a child has been removed from her parents’ home due to abuse or neglect. In many cases, the department will then place the child with a willing relative. Illinois state law once excluded some grandparents from taking in their grandchildren in this circumstance if they were over the age of 65, but this rule was revoked in 2003.
Grandparents can then petition the court for guardianship, although the situation isn't necessarily permanent unless the court determines that there’s simply no possibility the child can ever return to her parents’ home. Sometimes grandparents are given the right to care for their grandchildren on a day-to-day basis while DCFS acts as their legal guardian.
Grandparent Visitation in Illinois
Another option for Illinois grandparents is court-ordered visitation with their grandchildren, rather than custody or guardianship. But this, too, is subject to numerous rules. Grandparents must prove in court that the child’s parent or parents have intentionally and unreasonably prevented them from seeing the child. They must also establish that this behavior has harmed the child emotionally, mentally or physically.
The child’s parents cannot be living together or married, but an exception exists if a married parent is deceased or has been missing or incarcerated in jail or prison for at least three months. If none of these conditions apply, grandparents can attempt to establish that the parent or parents are incompetent. Finally, if the parents are divorced or in the process of divorcing or legally separating, and if one of the parents doesn’t object to visitation, a grandparent can base her petition for visitation on this situation. But this rule only applies if custody and parenting time are an issue in the divorce or separation proceedings.
How the Court Decides
The rules for permanent custody of a grandchild or obtaining guardianship in Illinois are more black-and-white than those for visitation. When visitation is at issue, the judge can take the child’s wishes into consideration if he’s old enough. The court can consider other factors as well, such as the relationship between the grandparents and the grandchild and how and to what extent a lack of visitation would hurt the child.
Where to Get Help
Illinois has several programs in place to help grandparents who find themselves in this type of situation. The Grandparents and Other Relatives Raising Grandchildren Program provides training, counseling and support groups. The Extended Family Support Program can help grandparents with the guardianship process. You can find out more about these programs and other available services by contacting DCFS at 800-232-3798 or 217-524-2029.