Can Grandparents Get Custody of Grandchildren in Illinois?

The courts almost always favor leaving children in the care of their biological parents. However, in cases
where a parent is incapable or doesn’t want to take care of their children, a grandparent can petition for
custody.

It’s rare, but there are times where custody, or “parental responsibility” in Illinois, is given to a third party like a grandparent.

How and when would grandparents get custody over a child?

Compared to visitation, the circumstances that would allow grandparents to take custody of their grandchildren are even more specific. In Illinois, custody is legally known as “parental responsibilities”, and will almost always default to the parents.

Generally, grandparents are only given custody if:

  • The parents willingly give up the child due to extreme financial hardship or other circumstances
  • The parents are declared unfit because of criminal activity or substance abuse

Proving a parent is unfit or trying to get custody as a non-parent is taken extremely seriously by the court. The court will always require proof and weigh it against the best interest of the child.

Can grandparents get parenting time (visitation) in IL?

In Illinois, as long as the parents are fit and have established custody over the children, it is completely in their discretion over whether or not to allow a grandparent to visit.

The law still allows for non-parents to petition the court for visitation rights, but the burden of proof is high. In that case, you’d need to prove that the parent’s decision to deny visits from a non-parent is physically, emotionally, or mentally harming the children.

The court tends to favor this if there is established proof that a grandparent had frequent and healthy visits in the past that were suddenly cut off. But since the court favors parents deciding how to raise their children, even this is not a guarantee.

Third Party Visitation in Illinois

In 2000, a case regarding non-parental visitation went to the Supreme Court. In that case, they ruled that you legally cannot force children to have a relationship with a third against their parent’s will. Because of this, parents are largely left in charge of how to raise their children.

So, as you can imagine, the legal mechanisms in place to grant third party (i.e. non-parent) visitation in Illinois are somewhat of a legal gray area. In Illinois, you can petition the court for visitation but certain circumstances need to be met. Specifically:

  • One or both of the children’s parents are in jail for over three months.
  • One or both of the parents are declared unfit
  • The parents agree to the visitation
  • One or both of the parents are deceased or have been absent for over three months

Even on these grounds, a grandparent would still conclusively have to prove that a lack of visitation would cause physical, mental, or emotional harm to the child. Also, unless the grandparents had a previous relationship with the children prior to the divorce, a court would probably not grant visitation.

Frequently Asked Questions

Do grandparents have legal rights in Illinois?

Illinois law almost always favors the parent’s wishes in raising their child. Unfortunately, that can mean that if they choose to cut off the relationship between you and your grandchildren, there is little you can do.

Additionally, as grandparents, you will never have any rights over their grandchildren by default. In the event where parents are unfit or pass away, you will always have to petition the court for parental responsibilities.

Can grandparents sue for custody or visitation in Illinois?

Illinois does not provide for any visitation to grandparents or other non-parents by default. Unless it’s proven to harm the child, parents are given the discretion to choose who their child has a relationship with or not.

In the event a grandparent is trying to petition for visitation rights, they must show that a relationship existed with the children before a divorce. In other words, a court may help restore an existing relationship but will not help build a new one.

Can parents deny grandparents visitation?

In all but the most extreme cases, parents are given full discretion over how their children are raised. If a parent decides they don’t want their child to have a relationship with their grandparents, that is legally within their right unless it would cause physical, emotional, or mental damage to the child.

Further, any damage to a child’s wellbeing caused by not having that relationship has to be proved in court. Gut feelings and hunches will not be enough to sway a court.

This is backed up by a 2000 Supreme Court case that largely set the precedent for third-party visitation. In that case, they determined that parents should ultimately have the final say over their children’s upbringing.

What is considered an unfit parent in Illinois?

Sometimes grandparents can sue for custody over children if their parents are shown to be unfit. Proving that a parent is unfit is taken very seriously in Illinois. To show a parent is unfit in Illinois, you must show a parent meets one or more of these criteria:[1]

  • Abandonment
  • Habitual substance abuse problems
  • Physical or emotional abuse
  • Mental illness or instability
  • Putting the children in an unsafe living environment
  • Being incarcerated
  • Not being interested in the children’s welfare
  • Neglect

Any of these allegations must be backed up with verifiable evidence including police reports, criminal records, medical records, photographs, or other documentation. These cases can be hard to prove, so it is always advisable to consult an experienced family attorney first.


References: [1]Criteria


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