Grandparent Visitation Rights

Should Grandparents have a right of visitation to their grandchildren?

If you were to define “right” as a fundamental right protected by our United States Constitution, any attorney or justice would tell you NO! These “grandparent visitation” cases all stem from the U.S. Supreme Court case of Troxel v. Granville in which the Court stated that allowing a grandparent visitation rights over the objection of the child’s parents interfered with the parent’s fundamental right to rear their children, thus, was unconstitutional.[1] However, this case was not the final say as to grandparent rights. During the 2000s, Illinois grappled with the constitutionally of the “grandparent visitation” statute and but the Illinois legislature finally created a statute in 2005 that is still in effect today.[2]

I believe that the above question should be answered from moral point of view before determining what legal recourse a grandparent has to secure visitation with their grandchildren. I see two different situations: (1) the child was deserted by one of their parents and the grandparents of the “deserter” now wish to create a relationship with the grandchild or (2) the parents of the child are criminals, drug users, worthless or all of the above and the grandparents want to give the child some sort of stable lifestyle. In both scenarios, the answer for me is easy: visitation is the least the court can do, why not custody? However, the law is not so easy to agree.

As of right now, IMDMA section 607(a-5)(1) requires at least two elements in order for a grandparent to file a petition for visitation.[3] Those elements are: (1) a parent has unreasonably denied visitation to the grandparent and (2) one of the following:

  1. The child’s other parent is deceased or deemed missing for over 3 months.
  2. A parent is incompetent as a matter of the law.
  3. A parent has been incarcerated for the 3 month period preceding the filing of the petition.
  4. The child’s mother and father are divorced 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 custody or visitation of the child … and at least one parent does not object to the grandparent having visitation with the child. The visitation of the grandparent must not diminish the visitation of the parent who is not related to the grandparent.
  5. The child is born out of wedlock, parents are not living together, and petitioner is a maternal grandparent of the child.
  6. The child is born out of wedlock, parents are not living together, the petitioner is the paternal grandparent, and the paternity has been established by a court of competent jurisdiction.

The statute goes on to say that the grandparent has the burden to prove the parent’s decision to refuse visitation is harmful to the child’s mental, physical, or emotional health. The statute gives a list of factors for the Court to consider.

In sum, the grandparent has a tough evidentiary battle to overcome. He or she must be able to produce evidence that the denial of the visitation is unreasonable and harms the child’s mental, physical, or emotional health. If the parents have never been charged or convicted of a crime, what type of evidence could the grandparent logically obtain? Some decent tools at this point would be depositions and interrogatories. However, what parent will admit to their foul conduct upon the child? The grandparent could always obtain experts to evaluate the child’s relationship with the parents or file a motion for a 604(b) evaluator. Either way, although expensive, the 604(b) evaluator or expert would be crucial in satisfying the grandparent’s ability to overcome their burden in court.

Let us go back to the two scenarios I presented above. In the first scenario, one parent deserted the child. The parents are either divorced, the non-deserting parent has filed a petition for dissolution, or never married. In the first two cases, so long as one of the parents do not object, the grandparents may file a petition for dissolution so long as they have been denied reasonable visitation. However, if the parents were never married, the grandparent could still file the petition even if the parent has objected. In the second scenario, if the parent is incarcerated than the grandparent just has to prove the grandparent has been denied reasonable visitation. If the parent is a drug-addict or the like, the grandparent will most likely not be able to petition the court for visitation absent other circumstances.

The Court’s presumption that parents are ALWAYS fit parents and have the fundamental right to rear their children has some fundamental flaws. However, the right is a “right” for a reason. Just because a grandparent may object to a parent’s lifestyle does not necessarily mean that the parents are bad at their job of raising their own children. The Courts need to protect the parents right to raise their children and take every precaution necessary. However, my suggestion is that grandparents should simply have to prove that the parent is “unfit” in order to gain visitation. This burden should rest with the grandparents and should be proven by clear and convincing evidence. If the parent is “unfit”, what else does the grandparent need to prove? What do you think?


[1] Troxel v. Granville, 530 U.S. 57 (2000)

[2] In 2000, the Illinois Supreme Court in Lulay v. Lulay, 193 Ill. 2d 455 (2000) stated parts of IMDMA 607 were unconstitutional. In 2002, the Illinois Supreme Court in Wickham v. Byrne, 199 Ill. 2d 309 (2002) stated all of the grandparent visitation statute was unconstitutional. Finally on January 1, 2005, the new grandparent visitation statutes went into effect.

[3] 750 ILCS 5/607(a)(5), 607(a)(7)

Civil Unions vs. Marriage: What’s the difference?

“Marriage” is the voluntary union of one person to another.[1] According to the state of Illinois, a “civil union” is a legal relationship between 2 persons, of either the same or opposite sex.[2] For purposes of comparison, a domestic partnership in California is defined as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.”[3] After reading the above, you may be asking yourself “well, what’s the difference?” In my opinion, not much. The primary differences come into what rights are afforded to people in a civil union as compared to a traditional marriage.

Illinois General Assembly has stated that “a party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.”[4] Seems like people in a civil union have the same rights as people in a marriage. Not exactly. Most newspapers have been claiming the rights of people to a civil union include the right to visit a sick partner in the hospital, disposition of a deceased loved one’s remains and the right to make decisions about a loved one’s medical care.[5] The question than remains, at what point do those rights that are afforded to a man and woman not extend to a gay couple? Only time will tell. However, let me highlight some of the rights afforded to gay couples in California that may shed some light on the future of Illinois’ Civil Union act.

  • Domestic partners owe each other the fiduciary duty of the highest good faith and fair dealing.[6]
  • Typical community property laws apply to the domestic partners as if they were a man and woman.[7]
  • Domestic partners are not exempted from the Federal gift and estate tax when one partner transfers his or her real estate to both partners jointly. In a traditional marriage, the spouses would be eligible for the exemption.[8]
  • Domestic partners are entitled to all the same employee benefits as a married couple (including health and retirement plans).[9] However, since the federal government does not recognize a domestic partnership, domestic partners do not have the same rights as a married couple in a federal retirement plan.
  • A domestic partner may bring a wrongful-death lawsuit for the death of his or her partner.[10]
  • Domestic partners may keep their communications privileged and they have the right not to testify against the other, same as a married couple.[11]
  • Domestic partners are allowed to take part in the intestate distribution of their partner’s estate to the same extent the partners were a married couple.[12]

The above includes just a few examples of the rights afforded to domestic partners. By examining the above, you most likely noticed the same pattern as me, domestic partners have all the same rights as married couples except when it comes to the Federal Government. Therefore, I would expect that civil unions in Illinois will mirror the situation in California. No matter how you look at the situation though, a domestic partnership or a civil union will never be marriage to those involved in a domestic partnership or civil union. The reason being (I would guess) is that gay couples want to be viewed equal in the eyes of the law, not just by the rights and responsibilities given to them but in terms of the name. “Why can a man and woman be married but a gay couple cannot?” A question debated by most Christians and a decision that will plague politicians until the United States Supreme Court gives this nation guidance. On a related note, Thomas Jefferson once wrote a letter to the Danbury Baptists about the separation of church and state.[13] Will this famous idea in America’s legal and political history play a part in shaping the rights of gay couples? Once again, only time will tell.


[1] http://www.merriam-webster.com/dictionary/marriage

[2] Illinois General Assembly Bill SB 1716

[3] California Family Code section 297(a).

[4] Illinois General Assembly Bill SB 1716

[5] http://www.huffingtonpost.com/2010/12/01/illinois-civil-unions-bil_2_n_790595.html

[6] Cal. Fam. Code section 297.5

[7] Id.

[8] Internal Revenue Code sections 2056, 2503, 2523

[9] Cal. Fam. Code section 760

[10] Cal. Code Civ. Proc. Section 377.60(a) and (l)

[11] Cal. Evid. Code section 970 and 980

[12] Cal. Probate Code section 6401

[13] http://www.loc.gov/loc/lcib/9806/danpre.html

Leveling the Playing Field by Recovering Attorney Fees

Does Recovering Attorney Fees from the Opposing Party Diminish the Importance of our Adversarial System?

Well known to Illinois attorneys and most clients is that a party may seek attorney fees from the opposing party pre or post-divorce decree. 750 ILCS sections 501, 503, and 508 provide the relevant parts to seek attorney fees. Likewise, California Family Code section 2030 and 2032 provide the same.

Although both attorneys and clients love these statutes, why were they enacted? In an article I recently read, the overall purpose of the Illinois statutes is to “enable parties to have equitable access to representation, encourage attorneys to represent economically disadvantaged spouses, and prevent abuse of the dissolution system by both parties and their attorneys.”[1]

However, I advise you to remember the model upon which our legal system is based.

First, unlike many of our European counterparts where there is not a “fierce competition” between the attorneys and where the losing party pays for the winning party’s court fees and costs, the American court system is almost the exact opposite. The American legal system was developed around the theme that each party shall bear his or her own attorney fees and the winning party will prevail, in large part, due to the competence of his or her attorney and the procedures the attorney takes during the course of the proceedings. So what is to say about paying for the opposing attorney’s fees? Does this law go against the “American way?”

In sum, Illinois and other similar state statutes were enacted to “level the playing field.”[2]What we must consider is that there is much more at stake in family law cases rather than civil cases. In the general practice of family law, a person’s entire personal life has crumbled. The one you used to love is no longer the love of your life. In fact, she or he is probably your worst enemy at the moment. Your child or children are being emotionally abused by your divorce and will most likely remember these years for the rest of their life. On top of all of the above, your entire financial estate is about to be ripped to shreds. Well, I applaud everyone who has the emotional courage to handle such a situation. However, should the more financially secure spouse be the one who obtains more rights to the child or children? Should the wealthier spouse, who can afford a better attorney, secure a lower spousal support payment? Family law is not in the business of correcting a wrong like that of civil law but rather family law, in part, is in the business of putting spouses in a financially secure position based upon their marital interest in the estate and ensuring any order or judgment is made in the best interests of the child.

Although “leveling the playing field” may be in direct opposition to the American theme of adversarial competition in the courtroom, you must always ask whether one spouse should be entitled to more rights to the children just because the former has more wealth? Should the marital estate, which was built by both parties, be reduced to nothing for one spouse just because the other spouse can afford a better attorney? If you can answer these questions, than you can decide whether “leveling the playing field” is good legislation.


[1] Alison G. Turoff. “Recovering Attorney Fees From the Opposing Party in Illinois Divorces Cases,” 92 Ill. Bar J. 462 (Sept. 2006)

The purpose of California Family Code section 2030 is simply “to ensure that a party in need has adequate legal representation to litigate family law issues.” In re Marriage of Kelso, 67 Cal. App. 4th 374, 384-385 (1998).

[2] See Kaufman, Litwin, & Feinstein v. Edgar, 301 Ill. App. 3d 826, 836 (1998), appeal denied, 182 Ill. 2d 551 (1999).