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Kevin O'Flaherty

While there can be multiple reasons for a grandparent to want to gain custody of a child, there is no automatic right to custody for a third party. This is because Illinois child custody laws have the potential of overstepping the biological parent's rights to their child. Keep reading to learn more about what may affect your chance of receiving child custody as a grandparent.  

Can Grandparents Obtain Child Custody?  

It is possible for grandparents to obtain custody of a grandchild in Illinois. There are two possible ways to go about getting custody of a grandchild. The first way is when both parents of the child voluntarily give up their parental rights to the child. Parents may choose to relinquish rights due to things such as mental illness, incarceration, and substance abuse.  

The second way a grandparent can be awarded child custody is if the parents have been found unfit to care for the child. If the child is abused, neglected, or abandoned, the court may find the biological parents unfit. Proving a parent is unfit is something the court takes seriously and must be backed up by evidence in court with things such as criminal records, medical records, and other forms of documentation.  

Grandparent Visitation  

As a general rule of thumb, it is up to the biological parents to determine if grandparent visitation will be allowed. In certain situations, a grandparent can get a court order for visitation if the parent refuses the family member's time with the child.  

grandparents playing with child

How Grandparents Can Obtain Custody  

Before filing for custody of a grandchild, consider how this may affect your relationship with the child's biological parents and how this may affect their relationship with them as well. If you need to take control of parental activities on behalf of your grandchildren, consider contacting a lawyer to discuss legal guardianship.  

As mentioned above, you will need to consider if you can prove that the child's best interest will be under your custody. This means that both parents must be served with notice of custody action. You face the challenge of proving that both biological parents are unfit to care for the child. If you are only able to make a case for your own child being unfit, this may backfire and end with the other parent being awarded custody.  

Knowing when to get involved and taking advantage of situations where the parent's ability to provide for their child has declined can be to your benefit. Seeking custody after instances of abuse or arrests will help you protect your grandchildren from future uncertainty.  

Grandparents seeking custody may also consider the possibility of visitation with their grandchildren as an alternative to custody. Having a lawyer prepare to seek custody and have visitation as a backup is always a good idea.  

Overview of Grandparent Visitation Laws  

Restrictive Visitation Statues  

Restrictive visitation statutes come into play when the child's parents are divorced or one or both of them are deceased. The court will always consider the child's best interest regardless of the parents' marital status. If the parent or parents can provide a reasonable basis for not allowing the grandparents visitation, the court is unlikely to override their decision. If the issue is unreasonable and is due to estrangement between the parent(s) and their parents, the court may be more inclined to grant visitation.  

Permissive Visitation Statues  

The other type of visitation law in Illinois and several other states is permissive visitation. This law allows grandparents to request visitation if it is just a matter of the parents not wanting the grandparents to spend time with the child. For instance, If the parents are still alive and married but have chosen not to grant grandparents visiting time, this would be permissive visitation law. After a petition is received, the court will evaluate the request regarding the child's best interest.  

The court will consider the following factors before granting visitation:  

  • If the time requested impacts the child's set schedule  
  • The grandchild's preference  
  • The grandchild's mental and physical health  
  • The grandparents' mental and physical health  
  • If the child has lived with the grandparent for at least one year  
  • If the grandparent has been the primary caretaker for at least six months  


Adoption and Grandparents' Rights  

Another tactic for protecting your grandchildren's well-being could be adoption. Instead of seeking custody, grandparents may choose the adoption route. This means that grandparents would be the legal guardian of the child. Children can only have two legal guardians. If a grandparent wants to adopt their grandchild, the child's parent may have to voluntarily give up their parental rights. Many parents are unwilling to relinquish their parental rights. In such instances, the grandparents may have to take legal action through the court to terminate parental rights. The court seeks to preserve the parent-child relationship whenever possible, so the burden of proof is on the grandparents to prove that the biological parents are unfit.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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