The Extended Family: Visitation Rights of Non-Parental Relatives

Whether or not in the context of divorce, decisions involving child custody and visitation are among the most personal that families and courts have to make. Adding to the difficulty of such decisions is the reality that children have relatives beyond their parents. Siblings, grandparents, and even great-grandparents may make up the familial orbit surrounding a child. However, non-parental relatives have extremely limited rights when it comes to child visitation.

A Brief History of Non-Parental Visitation Rights

In 1981, by statute, Illinois granted siblings, grandparents, and great-grandparents the right to petition a court to grant them “reasonable visitation privileges” whenever the court found these visits to be in the best interests of the child. This law, like others similar to it across the country, sought to respect the complexity of the modern American family by giving legal force to the desires of non-parental relatives.

However, in 2000, the United States Supreme Court undermined all such statutes in a case called Troxel v. Granville. In Troxel, grandparents brought a petition to a Washington state court seeking visitation rights with their grandchildren. At the time, Washington had a law similar to Illinois (broader, in fact): a court could grant non-parental visitation rights whenever in the best interests of the child.

The Supreme Court struck down this law as against the constitutional rights of parents to raise their children as they see fit. As the Court wrote in Troxel, “the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” You can read more about the Troxel decision here.

As such, shortly after the United States Supreme Court handed down its decision, the Supreme Court of Illinois was forced to declare this state’s non-parental visitation law unconstitutional as well.

The Modern Framework for Non-Parental Visitation Rights

Today, the Marriage and Dissolution of Marriage Act governs the visitation rights of siblings, grandparents, and great-grandparents in Illinois. In line with the principles set forth in the Troxel decision, these relatives can still petition a court for visitation rights (of a child who is at least one year old). The law though provides for a so-called “rebuttable presumption” in favor of whatever a fit parent decides about visitation. If the parents decline visitation, a court cannot grant it unless the sibling, grandparent, or great-grandparent proves that the parents’ decision hurts that child’s mental, physical, or emotional health.

There are a number of factors that a court must consider when deciding these cases, including the child’s health, the child’s preferences, the nature of the relationship between the child and his or her relative, and the amount of visitation time requested. Still, this complex, parent-favored analysis is a long way from the days when a court would merely balance the interests of the child.

Resources for Family Law Help

Visitation rights can be complex, no matter the circumstances. The Wheaton, Illinois-based family law attorneys of Sullivan Taylor, Gumina & Palmer, P.C. have years of experience handling this area of law. If you need assistance navigating child custody or visitation, contact our Illinois family law attorneys today.