Siblings, grandparents, great-grandparents, and stepparents can play a critical role in a child's development. Bonds formed between a child and his or her family members can produce memories that will be cherished for a lifetime. Sadly, in cases of divorce, or when other conflicts or disagreements arise between extended family members, one or both parents may decide to end a relationship between a child and his or her relatives. While divorce may bring out the worst in people, it is important to remember that a child's best interests should be protected throughout the process. If a parent’s actions have had a negative impact on the relationship between the child and other family members, grandparents or other relatives may wish to take legal action to ensure they can remain in a child’s life. In these cases, an attorney can help family members determine their options for pursuing visitation rights.

How Does a Court Handle Visitation Claims?

For a visitation petition to be filed by a non-parent in the state of Illinois, there must be an unreasonable denial of visitation by the parent or parents. Furthermore, before visitation rights will be granted, it must be proven that the denial of visitation has caused mental, physical, or emotional harm to the child. In determining whether or not to grant visitation, the court may consider the following:

• The child's wishes

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Grandparents provide a wealth of loving care and family traditions to the younger generation, and most grandchildren will remember the time with their grandfathers and grandmothers well into their own adulthood. Grandparents add value to the lives of young children in immeasurable ways. Unfortunately, old feuds can get in the way of grandparents’ visitation rights, especially when the parents of the children separate or get divorced. In many cases, a child’s parent may disallow visitation with their ex-spouse’s parents, though it is sometimes a grandparent’s own children that disallow them from seeing their young loved ones.

What Steps Can I Take as Grandparent?

In Illinois, grandparents can petition the court to secure visitation rights with grandchildren. However, a grandparent must show that by not seeing their grandparents, the child is being harmed. As such, “the burden is on the party filing a petition” to prove that the parent’s decision about visitation will “cause undue harm to the child's mental, physical, or emotional health,” according to Illinois statute 750 ILCS 5/602.9. A grandmother or grandfather must show that the time spent with them has a positive impact on their grandchild’s mental, physical, and emotional well-being.

Having a close relationship with a grandparent benefits children’s well-being; previous research has shown that these types of relationships can reduce depressive symptoms in both the grandparents and the grandchild. If this is so widely known, and many studies have come to the same conclusion, does that mean that a court will simply accept a grandparent’s and child’s mutual wishes to continue spending time with one another? Sadly, the situation is more complex than this.

There are a multitude of reasons a parent may wish to restrict visitation between a child and their other biological parent. Sometimes there is evidence of neglect or abuse, and in other cases, the child does not want to go for their own reasons. No matter the situation, a parent’s natural instincts kick in to protect their child and do what is best for them. Yet you must balance that with what is also legally appropriate.

When it comes to parenting time in Illinois, is it ever permissible to restrict visitation?

Obstructing Court Order

Typically, only under the direst of circumstances will a judge restrict visitation to a biological parent. However, a clause exists protecting children from potential danger. After any court order is given, such as a parenting time agreement, only a judge can legally approve modifications. Non-compliance with a standing court order is illegal and can result in harsh penalties, but a judge can authorize modifications if evidence exists that visitation would endanger the child's physical, mental, moral, or emotional health in a serious manner.

Prior to 2016, the excessive use or abuse of alcohol or illegal drugs by one spouse was a valid grounds for divorce in Illinois. When all fault grounds were eliminated in the state in 2016, irreconcilable differences became the only official reason for which a couple could seek a divorce. The reality, however, is that substance abuse is a real problem in many marriages, especially if the couple has children together. In the wake of a divorce, drug abuse can and may continue to affect parental responsibilities and each parent’s right to parenting time.

Dividing Parental Responsibilities

When you, as a parent, get divorced, you and the other parent are expected by law to come up with a reasonable agreement regarding parenting your child. Before your agreement will be approved, the court will read it over and decide whether the terms reflect the child’s best interests. If the court does not approve the proposal, or if you the parents cannot reach an agreement, the court will determine how parental responsibilities will be allocated. In doing so, the court must consider many different factors and create an arrangement to meet the needs of the child.

It is at this point that you should bring up any concerns related to your former partner’s drug or alcohol use. If you can show that the other parent’s drug abuse—including prescription drugs—or excessive alcohol use presents a physical, emotional, or moral danger to the child, the court will take that into consideration. The same is true if alcohol or drugs prevents the other parent from carrying out his or her assigned parental duties. In most cases, this would result in fewer parental responsibilities being given to parent with a substance abuse problem.

Committing a crime is never a good choice, and in many cases, the penalties for doing so are severe. In addition to the jail time and the fines assessed for some offenses, if you are a parent, it may be a long time before you are able to see your children again. However, it is not an absolute that you will lose all rights to see them. Knowing your rights is critical.

Unfitness as a Parent

Parental rights are terminated if a parent is deemed to be unfit. Unfitness is a concept used by the state to determine whether or not a child’s best interests are served by remaining in the parent’s custody. There is no single definition of “unfit” in Illinois; rather, it is shown that a parent is unfit if or when they display certain characteristics or behavior patterns (or, conversely, fail to do so). For example, a parent may be declared unfit if they are incarcerated, but only if they have previously shown a pattern of disinterest or neglect regarding the child, or if they have been repeatedly incarcerated to the point where they are unable to perform parental duties.