While many of the custody and visitation arguments in courts are the result of divorces or disagreements between parents who were never married, that is not always the case. One example of a different sort of dispute that arises happens when a parent passes away. In this situation, a child's grandparents on the side of the deceased parent may argue that they should be entitled to visitation with their grandchild. Under some circumstances, they are entitled to such visitation.
Grandparents Fight for Visitation with Grandchildren
A recent Illinois Court of Appeals decision tells the story of a married couple who were the parents of two young children. The parents were in a horrible traffic accident, which killed the mother and severely injured the father. The father's injuries prevented him from caring for the children, so the children moved in with their maternal grandparents. They lived with the grandparents for about a year and a half. At that point the father remarried and fought a successful court battle to regain custody of his kids. Then he and his new wife moved the kids to New Mexico and cut off all contact with the maternal grandparents. The grandparents then went to court.
Illinois Petition for Grandparent Visitation
Illinois statute gives grandparents the right to petition for visitation under certain circumstances. Hence, this is what the grandparents did in the situation described above. The Illinois statute allows grandparents to petition for visitation when one of the children's parents is deceased—if the living parent has unreasonably denied visitation.
The law also includes a rebuttable presumption that a fit parent's actions regarding visitation are not harmful to the kids. This means that the court will assume that a fit parent is making a decision that does not hurt the kids unless the grandparents are able to prove otherwise.
While the grandparents’ petition was pending, the trial court ordered phone contact between the kids and their grandparents as well as a hand full of face-to-face visits. After a couple of years the trial court finally was able to hold a hearing in the case. Multiple family members and expert witnesses testified during the hearing. After hearing all of the evidence, the trial court determined that the kids had formed an attachment to the grandparents while they lived with them, which rebutted the legal presumption that the father's decision to cut off visitation was not harmful to the kids. The trial court then ordered that the father had to allow regular phone contact between the kids and the grandparents and put a schedule in place for in-person visits in both New Mexico and Illinois.
Appellate Court Upholds Grandparents Visitation Rights
The appellate court ruled that the trial court could reasonably find that it was unreasonable for the father to immediately cut off all ties between the children and the grandparents who had been raising them for a year and a half. As far as the presumption that the father was making a decision in the best interests of the kids, in this case the grandparents had presented expert testimony that the kids actually were harmed. While the father presented experts who disagreed with this expert, the trial judge was in the best position to decide which expert to believe and he believed the grandparents' expert. Thus, the appellate court upheld the decision and the grandparents have the legally enforceable right to visit with their grandkids.
In a Custody Dispute? Call us Today.
Whether you are a grandparent seeking visitation with your beloved grandchildren or a parent trying to protect your children from being forced to visit an unfit grandparent, you will need the help of a zealous advocate who is experienced in fighting for people like you. If you are in the DuPage County area, call the experienced DuPage County child custody attorneys at Sullivan Taylor & Gumina, P.C. today.