Getting visitation as a nonparent is possible if it is in the child’s best interest and under the right circumstances.
Illinois law gives certain people the right to petition the court for visitation of a child that is not theirs. The U.S. Supreme Court has recognized the constitutional right of parents to control and care for their children, so when a parent objects to their child spending time with someone (other than the other parent), that objection is difficult to overcome.
For this reason, states have had to enact carefully crafted nonparent visitation laws that protect parental rights while still acknowledging that it can be in the best interests of children to spend time with third parties even over parental objections. Illinois is no exception.
Limited Visitation Rights of Third Parties in Illinois
First, only people with specific relationships to the child can petition the Illinois state court for visitation (including through electronic communication):
- Grandparents
- Great-grandparents
- Siblings, including half-siblings and stepsiblings
- Step-parents, including one that was married to a parent of the child immediately before that parent passed away
The basic requirements for one of these nonparents to get visitation include:
- The child must be at least one year old.
- At least one of the parents must have unreasonably denied the nonparent’s request to visit the child.
- That denial must have “caused the child undue mental, physical, or emotional harm.”
- The petitioning nonparent must show that refusing future visitation with them will cause the child undue harm to overcome a rebuttable presumption that a “fit parent” can make healthy decisions for the child.
- One of these must be true:
- The other parent (not the one who denied the nonparent visitation) must have passed away or have been missing for at least 90 days.
- At least one parent is incompetent.
- At least one parent has been in prison for over 90 days.
- The parents are divorced or legally separated, or a court proceeding is pending that involves child custody or visitation, and at least one parent does not object to the nonparent having visitation.
- The parents are not married and not living together, but the parent-child relationship has been legally established. (For a grandparent, great-grandparent, or step-parent, only the parent related or married to the petitioner must have legal parentage.)
Judicial Decision Making
The judge must consider these factors:
- Child’s wishes in light of their maturity and ability to communicate and independently form preferences
- Child’s health
- Petitioner’s health
- Quality and duration of the child-petitioner relationship
- Petitioner’s good faith in requesting visitation
- Good faith of the parent who denied visitation
- How much visitation is the petitioner requesting, and what is the negative impact on the child’s activities
- Anything showing that the loss of the relationship would unduly harm the child’s health
- Whether the court could construct visits to “minimize the child’s exposure” to adult conflict
The court “should” also look at:
- Whether the child and petitioner lived together for at least six months with or without a parent
- Whether the child had “frequent and regular contact” with the petitioner for at least a year
- Whether the petitioner was the child’s primary caretaker for at least six months in the two years before the petition’s filing
The judge can allow visitation that is not overnight or in person, but rather electronic like by phone, video chat, text or other similar means.
Deployed Military Parents
Another provision in Illinois law that may allow nonparent visitation lets a deployed military parent ask the state court to allow them to designate someone the child knows to “exercise reasonable substitute visitation” for the deployed parent. The judge has discretion to allow this nonparent visitation only if it is in the child’s best interests.
This article is a general overview of complicated provisions of Illinois law. An attorney can answer questions about a particular situation.
