Thursday, December 11, 2008

Grandparent Visitation and Custody

I often receive calls from grandparents wanting to know how they can acquire visitation rights with a grandchild, or even custody. It is not an uncommon situation for these grandparents to be providing the majority of the daily care for their grandchildren.


The statute provides that, under certain circumstances, any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent. The petitioning party must show that the denial of visitation is harmful to the child's mental, physical, or emotional health.


It is becoming increasingly hard for parties like grandparents and step-siblings to convince a court to order visitation and/or custody. This is evidenced by the recent court opinion in Flynn v. Henkel, where the court ruled that the absence of the grandparent-grandchild relationship, by itself, is not harmful to the child's mental, physical, or emotional health. Personally, I disagree, but my opinion does not matter. However, courts have granted grandparent visitation in instances in which the children have developed a strong bond with a grandparent, such as where the children have lived with a grandparent for a significant period of time.


Grandparents seeking custody of a grandchild often face an equally daunting task. To a non-parent seeking custody, the issue of standing is critical. Standing means the power to bring a particular type of action. A non-parent seeking standing under the statute has the burden of showing that the child is in his or her physical custody, which requires that the child's parents voluntarily relinquished custody of the child to the non-parent. See Franklin v. DeVriendt.  The voluntary relinquishment by the parents to a non-parent must be clear and definite.  See In re Kirchner; In re Marriage of Dile (father did not relinquish custody by agreeing to allow grandparents to retain possession of the child temporarily). If the non-parent cannot establish standing, then he or she must plead and prove that the parents are unfit to have custody of the child. As you can imagine the he-said/she-said that occurs in custody disputes, standing is often hotly contested. If the grandparents are successful at defending their standing, the court then considers the best interests of the child in question.


Personally, I think that grandparents should be able to take more of a role in the lives of their grandchildren. But until things change in the current statutes and case law, grandparents face an uphill battle.





This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600