Grandparents’ visitation rights have been an issue since the United States Supreme Court decided the case of Troxel v. Granville in 2000. Since then, grandparents have had to petition the court for visitation rights. Courts will only grant them these rights if very specific conditions are met. In short, unless there are extreme mitigating circumstances like abuse or neglect, the parents always are the ones who can determine the best interests of the children. Sometimes, however, grandparents can successfully fight for visitation rights.
The Supreme Court’s Holding in Troxel
In Troxel, the Court overturned a Washington statute that granted “any person” the right to petition for visitation at any time. Under the Washington law, grandparents could petition the court for visitation, and a judge would determine whether it was in the best interests of the children. The Court held that the state law violated a parent’s due process rights to determine what was in the best interests of their children. The end result was that the case reaffirmed parental rights at the potential expense of grandparents’ rights.
The Illinois Law Regarding Grandparents’ Rights
In the wake of Troxel, Illinois enacted a law that set forth the conditions under which grandparents can obtain visitation. The grandparent must prove one of the following:
The child’s other parent is deceased or has been missing for at least 90 days
The parent of a child is incompetent as a matter of law
The parent has been incarcerated for at least 90 days
The parents agree to the visitation
Illinois’ law has created a presumption in favor of the parents if one is opposed to grandparent visitation. Grandparents need to overcome this presumption in order to secure visitation.
What Grandparents Should Do if They Want Visitation
Even if one of the above apply, the grandparents have a high burden of proof to meet. They will need to prove that the lack of grandparent visitation would pose physical, emotional or mental harm to the children. Since grandparent visitation presents a difficult case, grandparents hoping to be granted visitation should consider hiring an experienced attorney. The attorney can help them present evidence from experts showing that denying the grandparents visitation would harm the children.
Contact a Wheaton Family Law Attorney Today
The DuPage County family law attorneys at Andrew Cores Family Law Group can help grandparents who need to petition the court for the right to spend time with their grandchildren. You can call us today at 630-871-1002 to schedule a free consultation to discuss your case.