As part of a recent overhaul of the entire Domestic Relations Statute, the Illinois Legislature revised the Illinois Grandparent Visitation Act. The Act still requires grandparents to show harm to the child becuase of the parent’s decision to deny visitation.
(750 ILCS 5/602.9)
Sec. 602.9. Visitation by certain non-parents.
(a) As used in this Section:
(1) “electronic communication” means time that a
grandparent, great-grandparent, sibling, or step-parent spends with a child during which the child is not in the person’s actual physical custody, but which is facilitated by the use of communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication;
(2) “sibling” means a brother or sister either of
the whole blood or the half blood, stepbrother, or stepsister of the minor child;
(3) “step-parent” means a person married to a
child’s parent, including a person married to the child’s parent immediately prior to the parent’s death; and
(4) “visitation” means in-person time spent between a
child and the child’s grandparent, great-grandparent, sibling, step-parent, or any person designated under subsection (d) of Section 602.7. In appropriate circumstances, visitation may include electronic communication under conditions and at times determined by the court.
(b) General provisions.
(1) An appropriate person, as identified in
subsection (c) of this Section, may bring an action in circuit court by petition, or by filing a petition in a pending dissolution proceeding or any other proceeding that involves parental responsibilities or visitation issues regarding the child, requesting visitation with the child pursuant to this Section. If there is not a pending proceeding involving parental responsibilities or visitation with the child, the petition for visitation with the child must be filed in the county in which the child resides. Notice of the petition shall be given as provided in subsection (c) of Section 601.2 of this Act.
(2) This Section does not apply to a child:
(A) in whose interests a petition is pending
under Section 2-13 of the Juvenile Court Act of 1987; or
(B) in whose interests a petition to adopt by an
unrelated person is pending under the Adoption Act; or
(C) who has been voluntarily surrendered by the
parent or parents, except for a surrender to the Department of Children and Family Services or a foster care facility; or
(D) who has been previously adopted by an
individual or individuals who are not related to the biological parents of the child or who is the subject of a pending adoption petition by an individual or individuals who are not related to the biological parents of the child; or
(E) who has been relinquished pursuant to the
Abandoned Newborn Infant Protection Act.
(3) A petition for visitation may be filed under this
Section only 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.
(4) There is a rebuttable presumption that a fit
parent’s actions and decisions regarding grandparent, great-grandparent, sibling, or step-parent visitation are not harmful to the child’s mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent’s actions and decisions regarding visitation will cause undue harm to the child’s mental, physical, or emotional health.
(5) In determining whether to grant visitation, the
court shall consider the following:
(A) the wishes of the child, taking into account
the child’s maturity and ability to express reasoned and independent preferences as to visitation;
(B) the mental and physical health of the child;
(C) the mental and physical health of the
grandparent, great-grandparent, sibling, or step-parent;
(D) the length and quality of the prior
relationship between the child and the grandparent, great-grandparent, sibling, or step-parent;
(E) the good faith of the party in filing the
(F) the good faith of the person denying
(G) the quantity of the visitation time requested
and the potential adverse impact that visitation would have on the child’s customary activities;
(H) any other fact that establishes that the loss
of the relationship between the petitioner and the child is likely to unduly harm the child’s mental, physical, or emotional health; and
(I) whether visitation can be structured in a way
to minimize the child’s exposure to conflicts between the adults.
(6) Any visitation rights granted under this Section
before the filing of a petition for adoption of the child shall automatically terminate by operation of law upon the entry of an order terminating parental rights or granting the adoption of the child, whichever is earlier. If the person or persons who adopted the child are related to the child, as defined by Section 1 of the Adoption Act, any person who was related to the child as grandparent, great-grandparent, or sibling prior to the adoption shall have standing to bring an action under this Section requesting visitation with the child.
(7) The court may order visitation rights for the
grandparent, great-grandparent, sibling, or step-parent that include reasonable access without requiring overnight or possessory visitation.
(c) Visitation by grandparents, great-grandparents, step-parents, and siblings.
(1) Grandparents, great-grandparents, step-parents,
and siblings of a minor child who is one year old or older may bring a petition for visitation and electronic communication under this Section if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and if at least one of the following conditions exists:
(A) the child’s other parent is deceased or has
been missing for at least 90 days. For the purposes of this subsection a parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency; or
(B) a parent of the child is incompetent as a
matter of law; or
(C) a parent has been incarcerated in jail or
prison for a period in excess of 90 days immediately prior to the filing of the petition; or
(D) the child’s parents have been granted a
dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child (other than an adoption proceeding of an unrelated child, a proceeding under Article II of the Juvenile Court Act of 1987, or an action for an order of protection under the Illinois Domestic Violence Act of 1986 or Article 112A of the Code of Criminal Procedure of 1963) and at least one parent does not object to the grandparent, great-grandparent, step-parent, or sibling having visitation with the child. The visitation of the grandparent, great-grandparent, step-parent, or sibling must not diminish the parenting time of the parent who is not related to the grandparent, great-grandparent, step-parent, or sibling seeking visitation; or
(E) the child is born to parents who are not
married to each other, the parents are not living together, and the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child, and parentage has been established by a court of competent jurisdiction.
(2) In addition to the factors set forth in
subdivision (b)(5) of this Section, the court should consider:
(A) whether the child resided with the petitioner
for at least 6 consecutive months with or without a parent present;
(B) whether the child had frequent and regular
contact or visitation with the petitioner for at least 12 consecutive months; and
(C) whether the grandparent, great-grandparent,
sibling, or step-parent was a primary caretaker of the child for a period of not less than 6 consecutive months within the 24-month period immediately preceding the commencement of the proceeding.
(3) An order granting visitation privileges under
this Section is subject to subsections (c) and (d) of Section 603.10.
(4) A petition for visitation privileges may not be
filed pursuant to this subsection (c) by the parents or grandparents of a parent of the child if parentage between the child and the related parent has not been legally established.
(d) Modification of visitation orders.
(1) Unless by stipulation of the parties, no motion
to modify a grandparent, great-grandparent, sibling, or step-parent visitation order may be made earlier than 2 years after the date the order was filed, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously the child’s mental, physical, or emotional health.
(2) The court shall not modify an order that grants
visitation to a grandparent, great-grandparent, sibling, or step-parent unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior visitation order or that were unknown to the court at the time of entry of the prior visitation order, that a change has occurred in the circumstances of the child or his or her parent, and that the modification is necessary to protect the mental, physical, or emotional health of the child. The court shall state in its decision specific findings of fact in support of its modification or termination of the grandparent, great-grandparent, sibling, or step-parent visitation. A child’s parent may always petition to modify visitation upon changed circumstances when necessary to promote the child’s best interests.
(3) Notice of a motion requesting modification of a
visitation order shall be provided as set forth in subsection (c) of Section 601.2 of this Act.
(4) Attorney’s fees and costs shall be assessed
against a party seeking modification of the visitation order if the court finds that the modification action is vexatious and constitutes harassment.
(e) No child’s grandparent, great-grandparent, sibling, or step-parent, or any person to whom the court is considering granting visitation privileges pursuant to subsection (d) of Section 602.7, who was convicted of any offense involving an illegal sex act perpetrated upon a victim less than 18 years of age including, but not limited to, offenses for violations of Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, or Article 12 of the Criminal Code of 1961 or the Criminal Code of 2012, is entitled to visitation while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for that offense, and upon discharge from incarceration for a misdemeanor offense or upon discharge from parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense. Visitation shall be denied until the person successfully completes a treatment program approved by the court. Upon completion of treatment, the court may deny visitation based on the factors listed in subdivision (b)(5) of this Section.
(f) No child’s grandparent, great-grandparent, sibling, or step-parent, or any person to whom the court is considering granting visitation privileges pursuant to subsection (d) of Section 602.7, may be granted visitation if he or she has been convicted of first degree murder of a parent, grandparent, great-grandparent, or sibling of the child who is the subject of the visitation request. Pursuant to a motion to modify visitation, the court shall revoke visitation rights previously granted to any person who would otherwise be entitled to petition for visitation rights under this Section or granted visitation under subsection (d) of Section 602.7, if the person has been convicted of first degree murder of a parent, grandparent, great-grandparent, or sibling of the child who is the subject of the visitation order. Until an order is entered pursuant to this subsection, no person may visit, with the child present, a person who has been convicted of first degree murder of the parent, grandparent, great-grandparent, or sibling of the child without the consent of the child’s parent, other than a parent convicted of first degree murder as set forth herein, or legal guardian.
(Source: P.A. 99-90, eff. 1-1-16; 99-763, eff. 1-1-17.)