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Grandparent and 3rd Party Visitation

by Wes Cowell; updated 27 March 2018 -- e-mail a question.

Illinois' Non-Parent Visitation Law (750 ILCS 5/602.9) allows grandparents, great-grandparents, siblings, half-siblings, step-siblings, and step-parents to seek visitation whether or not a divorce, custody, or visitation case is pending between the parents.  Grandparent and 3rd-party visitation options include "electronic communication" -- telepohone, e-mail, instant messaging, texting, video conferencing, etc.  You'll definitely need a laywer's help.  Need advice? Callleave your info, or schedule a consult.


Illinois' Grandparent Visitation law (750 ILCS 5/602.9codifies the Supreme Court decisions since Troxel  and incorporates the better ideas employed by Illinois attorneys over the decades as the law was being reformulated and refined.


Uphill Battle:  Unerstand at the outset that while divorced (or divorcing) parents are "presumed [to be] fit and the court shall not place any restrictions on parenting time;" the presumptions work AGAINST a grandparent or other non-parent third party seeking visitation.  Non-parents are simply not on a level playing field when it comes to seeking visitation.  A parent may decide to prohibit contact with grandparents and other non-parents, and that decision must be presumed by the court to be a good one.  The law says:


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.

750 ILCS 5/602.9(b)(4) 


Prerequisites to Filing:   A petition for visitation may be filed


  1. grandparents,

  2. great-grandparents,

  3. step-parents, or

  4. siblings (including half- and step-siblings) of a minor child

only if:

  1. the child is at least one year old (750 ILCS 5/602.9(c)(1)),

  2. there has been an unreasonable denial of visitation by a parent, (750 ILCS 5/602.9(b)(3)), and

  3. the denial has caused undue mental, physical, or emotional harm to the child (750 ILCS 5/602.9(b)(3);


  1. the parents never married, are not living together, and parentage has been established;

  2. the parents are divorcing or divorced and one parent does not object to the 3rd party visitation (but the 3rd party visitation may not disrupt the objecting parent's parenting time); OR

  3. a parent has been incarcerated for more than 90 days;

  4. a parent is adjudicated incompetent;

  5. The child's other parent is deceased or has been missing for at least 90 days.

750 ILCS 5/602.9(c)(1)​

The Visitation Factors:  The new law lays out several factors that the court must consider in deciding whether to award grandparent visitaiton.  The new law says:  


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 grand-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 hte petition;

(F)  the good faith of the person denying visitation;

(G)  the quality 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 ofthe relationship between the petitioner and the child is likely to unduly harm the child's mental, physical, or emotional helath; and

(I)  thether visitation can be structured in a way to minimize the child's exposure to conflicts between the adults.

750 ILCS 602.9(b)(5)


In addition to the factors set forth in subdivision (b)(5) . . . the could 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 an regular contact or visitation with teh petitioner for at least 12 consecutive months;

(C)  whether the grandparent . . . was a primary caretaker of teh child for a period of not less than 6 sonsecutive months within the 24-month period immediately preceeding the commencement of the proceeding.

750 ILCS 5/602.9(c)(2)


"Possessory" vs. Electronic Visitation:  Illinois' grandparent visitation Law allows judges to award face-to-face ("possessory") visitation as well as "reasonable access;" that is, visitation in the form of electronic communication.  750 ILCS 5/602.9(b)(7).


Modification and the Two-Year Moratorium:  For parents, the parenting schedule may be modified at any time, as circumstances require, to serve the child's best interest.  Not so with grandparent visitation.  Grandparents (and great-grandparents, siblings, and step-parents) are prohibited from trying to modify visitation for two years unless "there is reason to believe that child's present environment may endanger seriously the child's mental, physical, or emotional health."  750 ILCS 5/602.9(d)(1).

Even after waiting out the two-year moratorium, a grandparent seeking to modify a grandparent visitation order must show that a substantial change in circumstances has occurred and modifying the grandparent visitation award would serve the child's best interest.  A parent, of course, may go to court to modify grandparent visitation at any time modification would serve the child's best interest.  750 ILCS 5/602.9(d)(2).

Frequency: Grandparent visitation schedules vary from case to case.  Most schedules are agreed on.  In the cases that have been presented for review, the norm for grandparent visitation varies from alternate weekends plus one weeknight down to one day per month with no overnight visits.


HISTORY OF GRANDPARENT VISITATION:  This is a long retelling of history and you want to skip down to Robinson v. Reif, it'll save you a lot of time.  I include this history lesson mostly for interested law students and reporters:  the law changed a LOT in a single decade and it's pretty interesting stuff . . . if you're a law student or a reporter. 

First enacted in 1981, Illinois' grandparent visitation law worked okay for 20 years but was then held unconstitutional in 2002.  A new law was passed.  Then that  law was held unconstitutional.  Then another law was passed. That law, too, was immediately challenged.  Thankfully, today, grandparent visitation is pretty well settled and is alive and well in Illinois.  Today, the law has been straightened out and grandparent visitation is secured in Illinois' visitation statute.


Back in the old days Illinoisans didn't need fancy laws to obtain grandparent visitation.  Grandparent visitation rights were recognized in the common law.  In one case from 1943, for example, grandparents were awarded visitation when the child’s father was inducted into the armed forces.  In a 1947, case a divorced father died and named his parents trustees of a fund for the benefit of the children and, as the grandparents, they were awarded visitation.  The Illinois Supreme Court has said "[u]nder the common law that existed prior to the statue, the court had subject matter jurisdiction to award grandparents visitation with their grandchildren when special circumstances were shown."  Bush v. Squellati, 522 N.E.2d 1225, 122 Ill.2d 153, 119 Ill.Dec. 366 (1988).


In the late 1970’s and early 1980’s, the law of divorce underwent a LOT of changes and, before long, the notion of grandparent’s visitation rights was beginning to present itself as a fairly common issue.  In the late 1970s, states began to amend their divorce laws to secure visitation rights for grandparents and Illinois followed suit.  Before Illinois adopted its visitation law in 1977, the “Divorce Act” controlled all custody and visitation decisions.  Under that law, courts could award grandparents visitation over the objection of the parents only in cases of “special circumstances.” Chodzko v. Chodzko, 360 N.E.2d 60, 66 Ill.2d 28, 4 Ill.Dec. 313 (Ill., 1976).


In 1981 Illinois enacted a grandparent visitation law that defined situations (beyond the common law's "special circumstances") where grandparents could seek court-ordered visits with their grandchildren.  Initially, the cases that were filed involved the death, incarceration, or active military duty of one parent.  For twenty years, the law operated effectively and grandparent visitation was allowed in such situations.  Although the law didn’t specifically say so, grandparent visitation was awarded instead of – not in addition to – the regular visitation rights of the non-custodial parent.  The rule was if a non-custodial parent could exercise visitation, it was only during those times that the grandparents (the parents of the non-custodial parent) could see the children.  If, however, a non-custodial parent could not exercise visitation (due to military service, imprisonment, etc.) and the custodial parent refused contact with the absent parent's family, then the grandparents could use the law to ensure contact between the grandparents and the children.


As the Baby Boom generation matured and became grandparents, and as their own children divorced, they began seeking visitation with their grandchildren.  More and more cases were presented and together they began to present some complex scenarios. Eventually, constitutional problems began to arise in grandparent visitation cases.


2000 -- Troxel v. Granville In 2000, the U.S. Supreme Court, in Troxel v. Granville, 530 U.S. 57 (2000) found the grandparent visitation statute in the state of Washington to be unconstitutional.  In Troxel, the father committed suicide and his parents wanted visitation with the grandchildren. The mother agreed and offered one day a month.  The grandparents wanted more time and pursued the matter in court using the Washington law. There were three primary factors that led the Supreme Court to conclude the law was invalid:


  1. The law did not require a judge to presume the parent’s decision about visitation was valid, nor to accord any weight to the “best interest of the child” in making its decision.

  2. There was no allegation in Troxel  that the mother was “unfit,” and the Supreme Court noted that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family.”

  3. The trial judge presumed that the grandparent visitation should be granted unless the children would be adversely affected. This presumption “contravened the traditional presumption that a fit parent will act in the best interests of his or her child.”


The Big Bugaboo: Besides being "breathtakingly broad," the big problem with the Washington grandparent visitation law, according to the U.S. Supreme Court, was that it put a fit parent on equal footing with anyone else in the world who might want visitation with that parent's children.  A parent's decision, the Court thought, should be accorded some extra weight.  The Washington grandparent visitation law was extremely broad in scope, too: any person (not just family members) could petition for visitation at any time (not just during a custody case).  The U.S. Supreme Court limited its ruling to the facts of Troxel, meaning that a grandparent visitation law with more restrictive language – like Illinois' – might pass Constitutional muster.


2000 -- Lulay v. Lulay:  Later that same year the Illinois Supreme Court took a look at Illinois' grandparent visitation law in Lulay v. Lulay.  The husband / father's parents sued for visitation with their grandchildren.  The divorced parents joined forces in opposing the paternal grandparent's visitation request. Under those circumstances, the Illinois Supreme Court ruled, the statute was unconstitutional.  A court could not step in and force parents to send their children off to visitation when the parents were united in opposition to the visitation.  The Supremes did not invalidate the law, entirely, however.  Instead, they said it was unconstitutional only under the facts presented in Lulay, where BOTH parents agree that grandparent visitation should not happen (in fact, three Justices -- Heiple, Rathje, and Freeman -- specially concurred that the Court should go further and hold the law facially unconstitutional).


2002 -- Wickham v. Byrne -- Law Held Unconstitutional:   Paul Byrne and Lizabeth Wickham married, had one child, and then Lizabeth died.  Liz left a will in which she expressed her desire that her mother, Virginia Wickam, should have frequent contact with the child.  After Lizabeth's death, Paul cooperated with Virgina for some visitation, but nothing like what Virginia wanted.  The relationship was strained, too, as Virginia had filed "frivolous and unfounded complaints" against Paul with DCFS and interfered with the child's pediatric care.  Paul took the child to see grandma when he could fit it in (they lived about a hour apart), but Virginia wanted alternate weekend visits, including overnights, free of any supervision by Paul (or anyone else).  When they couldn't reach an agreement, Virginia filed a case seeking grandparent visitation.  Paul sought to dismiss Virginia's case, the trial court denied his request, and Paul immediately took his case to the Supremes arguing that the law was unconstitutional on it's face.  In other words, Paul Byrne was saying what Justices Heiple, Rathje, and Freeman all specially concurred about in Lulay:  "there doesn't seem to be ANY set of facts ANYWHERE under which this law could be constitutional."

2002 -- Langman v. Langman This is a sister case to Wickham.  The facts are very similar to Wickham and it happened at exactly the same time, so the Illinois Supreme Court consolidated this case with Wickham and issued a single opinion for both.  Amy and Rhett Langman married, had two kids, and then Rhett died.  Rhett's parents, Grandpa Brent and Grandma Rita, had seen their grandchildren a few times a month while their son was alive and after his death they babysat the kids on Tuesdays so Amy could socialize.  Brent and Rita wanted to see the kids more, Amy objected, and the grandparents filed a case seeking visitation rights.  Amy then moved six hours away to Missouri to make a fresh start at life.  The trial court awarded grandparent visitation and ordered Amy to bear half the burden of the visitation trips.  Amy appealed arguing that, although Lulay involved two parents joining forces to oppose grandparent visitation, the law should also be unconstitutional when applied to a single parent, like her.  The appellate court agreed and reversed the trial court's visitation award.  Grandpa Brent and Grandma Rita appealed that ruling and the Supremes consolidated "the Langman Petition" with Wickham v. Byrne


The Supremes sided Amy Langman and said "We . . . reject any argument that single parents are entitled to less constitutional liberty in decisions concerning the care, custody, and control of their children."  They went further than that, though, and also agreed with Paul Byrne, saying:


A statute is facially invalid only if the party challenging the enactment can establish 'that no set of circumstances exists under which the Act would be valid." (citations omitted).

. . . .

Like the statute in Troxel, [the Illinois law], in every case, places the parent on equal footing with the party seeking visitation rights.  Further, like the statute in Troxel, [the Illinois law] directly contravenes the traditional presumption that parents are fit and act in the best interests of their children.  The statute allow the 'State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made.'  [The Illinois law] exposes the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micro-management of the state.  Because we can conceive of no set of circumstances under which [the Illinois law] would be valid, we hold that it is unconstitutional on its face.

Wickham v. Byrne, 769 N.E.2d 1, 199 Ill 2d 309, 263 Ill.Dec. 799 (Ill, 2002).

The 2005 - 07  Grandparent Visitation Law:  The Illinois legislature repealed and replaced the unconstitutional law in January, 2005; and the law was amended in 2007 all in an attempt to help it get over the constitutional hurdle.  The critical change was in section 607(a-5)(3), which stated:


(3)  In making a determination under this subsection (a-5), there is a rebuttable presumption that a fit parent's actions and decisions regarding grandparent, great-grandparent, or sibling 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 times are harmful to the child's mental, physical, or emotional health. 

750 ILCS 5/607(a-5)(3)


Got that?  Grandparent visitation is not to be awarded on a "best interest of the child" standard.  Instead, if the parent and grandparent cannot agree, the grandparent must prove that the denial of grandparent visitation is harmful to the child.  That's quite a bit of work -- don't try this without an attorney.


2007 -- Mulay v. Mulay -- Revised Law IS Constitutional:   No, it's not a typo; there really are two Illinois grandparent visitation cases called "Lulay v. Lulay" and "Mulay v. Mulay."  Jim Mulay, a Peoria County Sheriff’s Deputy was killed in the line of duty in May, 2003.  He was survived by his two children (then 5 and 2), his wife, and his parents (and a brother).  His parents had been very involved with his children since birth.  Grandpa Joe Mulay told Andy Kravetz of the Peoria Journal Star  “We had the children about 75% of the time because she worked, he worked, and we had the children an awful lot of the time.  His death didn’t change it a lot . . . we're very involved in their lives.”  In June, 2005, however, Officer Mulay’s widow informed the grandparents that from that point on, they could see the grandkids only at their T-Ball games . . . period.  She remarried and moved to near Des Moines, Iowa.


Grandpa Joe and Grandma Rita Mulay went to court to use the (2005) revised Illinois grandparent visitation law.  Their case was dismissed from the Peoria County Circuit Court when the trial judge concluded that Illinois’ revised grandparent visitation law was unconstitutional.  Joe and Rita appealed.  The Illinois Supreme Court vacated the trial judge’s order on other, non-constitutional grounds, and sent the case back to the Peoria judge to consider it.  The point here, is, that the Illinois Supreme Court wasn't concerned about the statute's constitutionality.


2007 -- Flynn v. Henkel:  Alice Henkel gave birth to a child fathered by Cory Flynn.  Cory went to prison and when Cory's mother, Cindy Flynn, first learned that she had a grandchild, she visited Alice and the baby that very night.  By agreement, Cindy visited Alice and the baby once a week or so, and then about once every other week.  When Cory got out of prison, he filed in court for visitation.  Alice was so upset that she stopped all contact between Grandma Cindy and the baby.  When Cory won supervised visitation rights, Alice demanded that Grandma Cindy not be present.  Before long, Cory moved to California.  At that point, Grandma Cindy went to court to set up her own grandparent visitation rights.  The trial court allowed the grandparent visitation, finding that Alice unreasonably denied the visits in retaliation for Cory's pressing his visitation case.  The trial court said "The harm in this case is not something that you can put in the sense of a direct emotional harm.  It's a direct denial of an opportunity that every grandparent according to this statute is entitled to."


What the . . . ?!?!  The statute says nothing about grandparents being "entitled" to visitation.  Worse, the trial court said there would be no direct emotional harm to the child if visitation were denied.  The ruling flied in the face of the statute's requirements.


Alice appealed but the appellate court agreed with the trial court and allowed the visitation order to stand.  The appellate court inferred that a prohibition of grandparent visitation would harm the child.  The court said "If Cindy were denied visitation, [the child] would be harmed by never knowing a grandparent who loved him and who did not undermine the child's relationship with this mother."  

What the . . . ?!?!?  Alice took her case to the Supremes.  They reversed the appellate court and the trial court.  The Supremes said:

Although [Grandma Cindy] testified that [the child] loves her and that he hugs her and holds her when he sees her, she did not present any evidence to show that denial of visitation with her would result in harm to [the child's] mental, physical, or emotional health.  The only evidence pertaining to harm [the child] would experience from the denial of visitation with his grandmother came from Alice, who was asked, "Do you believe it would be harmful for [the child] not to see Cindy Flynn and visit with her?" and she answered "No."

. . . .

Neither a denial of an opportunity for grandparent visitation, as the trial court found, nor a child "never knowing a grandparent who loved him and who did not undermine the child's relationship with his mother," as the appellate court held, is "harm" that will rebut the presumption stated in section 607(a-5)(3) [now 750 ILCS 5/602.9] that a fit parent's denial of a grandparent's visitation is not harmful to the child's mental, physical, or emotional health.


Based on the record before us we find that the trial court's unsupported oral pronouncement that [Grandma Cindy] had met her burden of proof in overcoming the statutory presumption that Alice's decisions denying grandparent visitation was not harmful to [the child's] mental, physical or emotional health is against the manifest weight of the evidence.

So, the Supremes said that Grandma Cindy fumbled by not proving how the denial of grandparent visitation would harm the child.  But . . . how can a grandparent prove that if the grandparent has no access to the child?  Plain old testimony from gram that "the child loves me," and "we give each other hugs," won't be enough to carry the day.  Obviously, one can conduct discovery and ask for mental exams and psychiatric reports -- but that's an awful lot to put a kid through and a burden most grandparents won't be willing, or able, to undertake.

2013 -- Dandurand v. Pitej:  Ann Pitej had a baby boy out of wedlock with Kevin Dandurand.  After some five years of fighting, they entered into an agreement that said, among other things, that Kevin's mother, Roberta Dandurand, could have visits with the boy during Kevin's alternate weekend visits.  About a year later, Ann obtained an Order of Protection against Kevin and she also refused to let Roberta (the grandmother) visit with the boy.


Instead of going to court to fight to enforce the agreement, Roberta filed a Grandparent Visitation claim under (the old, pre-1/1/2016) grandparent visitation law {750 ILCS 5/607(a-3) and (a-5)(1)(E)}.  Roberta put on a ton of evidence at the trial level, but the trial court concluded that she just didn't prove that the boy would suffer some harm just because he  wasn't seeing his Gram.  Roberta appealed, but the First District Appellate Court pointed to Flynn v. Henkel and said she failed to rebut the presumption (under 750 ILCS 5/607(a-5)(3) that a fit parent's denial of grandparent visitation is not harmful to the child.   Dandurand v. Pitej, 2013 IL App (1st) 123598 (1st Dist., 2013).


So, even as of 2013, no one had successfully prosecuted a Grandparent Visitation case in Illinois since the adoption of the 2005 amendment to the law.  The question from Flynn v. Henkel still remained unanswered:  "how can one prove that the denial of grandparent visitation will harm the child(ren)?"


2014 -- Robinson v. Reif -- The First Victory:  The mother and father were in a bad car accident.  The mother was killed and the father, Andrew Reif,  ended up doing 18 months of hospitalization and rehab.  During that time, the two-and-a-half year old and seven-month old babies went to live with the maternal grandparents, Paul and Linette Robinson.  Andrew was in the Army and when he recovered he was recalled to Fort Bliss, and moved to New Mexico -- the kids stayed with Gram and Gramps.  He soon remarried and Gram and Gramps feared they'd lose the kids and filed for guardianship.  The custody battle was contentious, but Andrew prevailed.  It didn't end there, however.  The grandparents then claimed that Andrew wasn't competent to care for his own children and he had to take a mental exam . . . which he passed.  That would have pissed me off, and it seems to have done the same for Andrew.  He moved his kids and new wife to New Mexico, cutting off all contact with Ma and Pa Robinson.


A month later Gram and Gramps went to court to seek grandparent visitation under the old (pre-1/1/2016) 750 ILCS 607(a-5)).  They won.  On appeal, the appellate court affirmed the trial court's "common sense" finding that the children had formed an attachment to Ma and Pa Robinson and that visitation should be awarded.  Robinson v. Reif, 2014 IL App (4th) 140244 (4th Dist., 2014). The award amounted to

  • weekly unsupervised phone calls;

  • a week-long visit every June in Decatur, Illinois;

  • weekend visits in New Mexico every April, October, and December.  

We finally had some guidance about what it takes to win one of these cases short of big ticket, expert testimony from child psychiatrists:  grandparents have to demonstrate that the children have formed relationships and attachments with the grandparents and severing those relationships will result in harm to the kids.  If you ask me, the 4th District's Robinson flies in the face of the Supreme Court's Flynn, but it gives grandparents in the 4th District some hope.  Everyone else should plan on hiring an expert.

2016 -- The New Law:  Illinois adopted a new grandparent visitation law (750 ILCS 5/602.9) 1 January 2016.  The "new" law is, essentially, a re-organizing of the paragraphs of the the 2005 / 07 law.  The new law adds step-parents as possible Petitioners (step-siblings and half-siblings were already included in the 2005 / 07 law) and helps meet Constitutional muster by beefing up the list of  prerequisites to filing by changing:


". . . 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 . . . ."



"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."

750 ILCS 5/602.9(b)(3)



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