Do my family members have a right to visitation with my child?

Pursuant to the Illinois Marriage and Dissolution of Marriage Act, the court allocates parenting time and parental responsibilities according to the best interest of a child. A determination on the best interest of a child is made after the court considers all relevant factors, such as the wishes of each parent and the child, how much time each parent spent performing caretaking functions, and the child’s relationship with their parents and other family members. As parental responsibilities and parenting time are allocated and new arrangements are made, family members may express their interest in visitations, in-person or via electronic communications, with the child.

Pursuant to 750 ILCS 5/602.9, certain family members can bring an action or file a petition requesting visitations in a pending proceeding for dissolution of marriage, allocation of parental responsibilities, or visitation. The family members who may file a petition are the child’s grandparents, great-grandparents, siblings, and step-parent.

In Illinois, there is a rebuttable presumption, which is an assumption the court will accept as true unless it is proven otherwise, that a fit parent’s decisions for visitation between a child and their family members are not harmful to a child. Parents importantly have a right to make decisions about the care, custody, control, and upbringing of their children. However, family members can file a petition if 1) they were unreasonably denied visitation by a parent, which causes undue mental, physical, or emotional harm to the child, and 2) one of the following conditions exist:

• The child’s other parent is deceased or has been missing for at least ninety days;
• A parent is incompetent as a matter of law;
• A parent has been in jail or prison for over ninety days immediately prior to filing the petition;
• The child’s parents have been granted a divorce, are legally separated, or there is a pending proceeding, and at least one parent does not object to the family member having visitation with the child, and the visitation does not diminish parenting time; or
• The child is born to non-married parents; the parents are not living together; the petitioner is the child’s grandparent, great-grandparent, sibling, or step-parent; and the parent-child relationship is legally established.

The court looks to 1) whether the child resided with the family member for at least six consecutive months, 2) whether the child had frequent and regular contact or visitation with the family member for at least twelve consecutive months, and 3) whether the family member was a primary caretaker of the child for at least six consecutive months within a twenty-four month period before the proceedings. The court will also consider various best interest factors when determining whether to grant visitations between the family member and the child. These factors, as defined under 750 ILCS 5/602.9, include the following:

• The wishes of the child with respect to their maturity and ability to express their preferences;
• The mental and physical health of the child;
• The mental and physical health of the grandparent, great-grandparent, sibling, or step-parent;
• The length and quality of the child’s prior relationship with their grandparent, great-grandparent, sibling, or step-parent;
• The good faith of the filing party;
• The good faith of the parent denying visitation;
• The quantity of the requested visitation time and potential adverse impact it would have on the child’s activities;
• Other facts that establish that the loss of the relationship would unduly harm the child’s mental, physical, or emotional health; and
• Whether visitation can be structured to minimize the child’s exposure to conflicts.

If you’re considering divorce in the North Shore or the surrounding areas, getting legal guidance at O. Long Law, LLC can be an important first move toward a more secure future.