Within the last number of years, grandparents have enjoyed the benefit of a trend in the law expanding their rights as it relates to their grandchildren.
Specifically, the 2014 Robinson v. Reif Appellate Court decision changed the landscape for grandparent visitation, finding that grandparent visitation depends most weightily on the actual physical, mental or emotional harm to the child without their grandparent’s involvement, rather than the long standing presumption that “a fit parent knows best.”
If the facts are right, grandparents can actually pursue legal custody of their grandchild – or the decision making power relative to their grandchild – pursuant to Section 601 of the Illinois Marriage and Dissolution of Marriage Act. Here again, we have come to see the proverbial presumption that “a parent knows best,” challenged time and again.
Grandparent custody cases almost invariably hinge on the concept of “standing,” or the threshold that simply permits a grandparent to file for custody in the first place. The Courts have found that this notion of “standing” is a highly fact-dependent inquiry based on the answer to the following question: did the parent(s) voluntarily and indefinitely relinquish legal custody of the child? To determine the answer to this question, the Courts look at the facts; notably, 1) how the grandparent obtained physical possession of the grandchild, 2) the nature of the physical possession, and 3) who was the individual responsible for the child’s care and welfare prior to initiating suit.
Calling all grandparents! Calling all grandparents! If you wish to obtain court ordered visitation with your grandchild, or wish to pursue legal custody of your grandchild, be sure to consult with an attorney – this is much more difficult than setting up your newfangled iPad!
This post was written by Jordan D. Rosenberg: Family Law Associate
