With divorce on the rise and the "family" taking many different forms, grandparents' rights with regard to their grandchildren are being addressed by our courts. As with most matters involving children, the courts look to what is in the best interests of the child when deciding visitation and custody issues. These determinations are made on a case-by-case basis since each family comes to court with a unique set of circumstances.
In Illinois, a grandparent is allowed to seek reasonable visitation privileges from the court. The petition may be filed only if one or more of the following conditions exists: (1) the parents are not currently living together on a permanent or indefinite basis; (2) one of the parents has been absent from the marital home for more than a month without the spouse knowing of his or her whereabouts; (3) one of the parents has died; (4) one of the parents joins in the petition with the grandparents; or (5) a sibling is in state custody. Illinois courts will enforce such visitation privileges if it finds that it is in the best interests and welfare of the child.
Recently, the Illinois Supreme Court found that the Illinois law providing for grandparent visitation was unconstitutional under the specific circumstances of the case. The decision was based upon the fundamental right of parents to make decisions concerning the care, custody, and control of their children. In this case, the paternal grandmother filed a petition against her son and his ex-wife seeking visitation with her grandchildren. Both parents agreed that their children should not have visitation with their grandmother. The court saw no compelling reason to override the parents' decision on behalf of their children and the grandmother's petition was denied.
