A person’s right to have custody or visitation with a child depends on their relationship to the child.
The parent-child relationship is special because certain rights and obligations arise from that relationship. This includes a parent’s right to limit the child’s exposure to other family members. However, a child’s siblings, grandparents, and stepparents also may have a right to spend time the child.
When the rights of parents and non-parents conflict about spending time with a child, Illinois law can intervene to resolve the issue.
Visitation Rights in General
The term “visitation rights” strictly applies to non-parents.
Until a few years ago, visitation generally referred to the right of non-custodial parents and non-parents to spend time with a minor child. However, the enactment of Public Act 99-90 replaced the term “visitation rights” with “parenting time” regarding a non-custodial parent’s right to spend time with their child. As a result, the term “visitation” was relegated to situations where non-parents requested time with a child.
The change in terminology reflected the notion that parents aren’t merely visitors with respect to their own children; only friends and relatives are.
Courts are required to consider the following factors when determining non-parent visitation rights:
- The child’s wishes
- The child’s physical and mental health
- The non-parent’s physical and mental health
- The strength of the relationship between the child and non-parent
- The non-parent’s good faith in making the visitation request
- The good faith in denying visitation requests
- The amount of requested visitation time, and the negative effect it would have on a child’s routine
- Other factors demonstrating that the loss in the relationship between the non-parent and child would harm the child’s physical and mental well-being
- The ability to structure visitation to minimize the child’s exposure to conflicts between adults
Grandparents, Great-Grandparents, Stepparents, and Siblings
Under Section 602.9 of the Illinois Marriage and Dissolution of Marriage Act, grandparents, great-parents, siblings and stepparents can petition the court seeking visitation time with a child pending divorce proceedings involving the child’s parents.
Parents have a say regarding non-parent visitation with their child and may deny visitation requests from grandparents, great-grandparents, stepparents, and siblings. However, a request for court-ordered visitation is appropriate “if there has been an unreasonable denial of visitation by a parent and the denial has caused the child undue mental, physical, or emotional harm to the child.”
Special circumstances where a visitation denial would cause undue harm to a child include:
- One of the child’s parents has died or been missing for 90 days
- A child’s parent was deemed legally incompetent
- A child’s parent has been in prison for more than 90 days
- The child’s parents are divorced, separated, or unmarried, and one of the parents does not object to the visitation request
Visitation of Same-Sex Partners
At the turn of the century, courts held that same-sex partners were not entitled to visitation privileges because statutes did not recognize that right at the time. However, after Obergefell v. Hodges, the same-sex partners of the child’s biological parents could now exercise the right to petition for visitation privileges with regard to their partner’s child.
Illinois now law defines “step-parent” to mean “a person married to a child’s parent, including a person married to the child’s parent immediately prior to the parent’s death.” Therefore, same-sex partners who were married to a child’s parent qualify as stepparents under Illinois law.
Ask a Skilled Attorney from the Law Offices of Jonathan Merel, PC
Are you a grandparent, great-grandparent, sibling or stepparent of a child whose parents are unreasonably denying you visitation time? If so, you should contact an attorney at the Law Offices of Jonathan Merel, P.C. with experience handling non-parent visitation cases. We are committed to making sure your right to visit a child is protected, especially when the loss of your relationship would cause undue harm to the child.