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:
- The child’s other parent is deceased or deemed missing for over 3 months.
- A parent is incompetent as a matter of the law.
- A parent has been incarcerated for the 3 month period preceding the filing of the petition.
- 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.
- The child is born out of wedlock, parents are not living together, and petitioner is a maternal grandparent of the child.
- 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)
