The visitation rights of non-parents vary from state to state. In Illinois, unless the parent has already granted visitation privileges to the non-parent, the family court decides how much time a non-parent spends with a child. A judge will review the family member’s petition for visitation and make a final decision based on the best interest of the child.
Who Can Petition for Visitation Rights?
During a divorce or custody proceeding, the Court does not automatically grant visitation rights to family members such as:
- Grandparents
- Great Grandparents
- Aunts/Uncles
- Step-Parents
- Siblings
The parent decides who the child spends time with, even if the child lived with an extended family member or had a close relationship with them. In certain situations, one parent can refuse to allow the other parent’s family to visit with the child. Example of such situations include cases that may involve a deceased or imprisoned parent. This could be due to tension between the parents or tension between the parent who has custody of the child and the other family member.
A Non-Parent Petitions For Visitation Rights In Family Court.
If non-parents are denied visitation rights, they may file a request for a visitation order. Within the request, the family member must prove that the parent’s denial of visitation is unreasonable. This is a threshold factual issue the Court must determine before the non-parent can even proceed on their request for visitation.
In addition, the family member must also prove that the unreasonable denial of time has or will cause undue mental, physical or emotional harm to the child. This is a high evidentiary burden for non-parents to surpass. The Court often presumes that a parent’s action(s) to deny contact are in the best interests of the child. Non-parents can rebut this presumption, but the Court has historically not made it easy for non-parents to “trump” or “second guess” the decisions of the natural parent.
A non-parent can file a petition for visitation if any of the following situations apply:
- The Court declares the child’s other parent as deceased or missing for at least 90 days.
- The Courts declared a parent incompetent.
- Law enforcement has incarcerated a parent in jail or prison for more than 90 days immediately prior to filing the petition.
- The Court granted the child’s parents a divorce or both parents have been legally separated. There is a pending divorce involving a parent of the child, or another court proceeding involving parental responsibilities or visitation of the child. At least one parent does not object to the non-parent having visitation with the child.
- The child’s parents are not married to each other, nor are they living together. The non-parent petitioning for visitation is a confirmed grandparent, great-grandparent, step-parent or sibling of the child. Non-parents seeking visitation under this section must be able to show that paternity of the child was legally established.
There are also circumstances in which the Court may deny the family member’s petition for visitation. They can do so prior to hearing any evidence about the denial of contact.
The reasons for denial include cases where the child is involved in an adoption case by an unrelated person, was previously adopted, or was voluntarily surrendered by the parents.
Other Factors The Court Takes Into Consideration
Ultimately, the Court aims to make a decision that is in the best interest of the child. This may or may not include visitation from the family member. In addition to the above mentioned, the Court evaluates other aspects upon review of the non-parent’s petition for visitation rights. These include:
- The child’s wishes
- The health of the child and family member
- The quality of the visitation requested
- The visitation’s impact on the child’s relationship with the parent and other family member
In cases where the parents divorced or legally separated, any visitation rights of non-parents granted by the Court cannot interfere with already established parenting time of the parent who is not related to the non-parent.
As an experienced family law attorney, Kristen Strieker can assist both parents and non-parents. She can help them obtain the parenting time and visitation privileges they desire. Contact Strieker Law Firm today to learn more.
