Author: Prairie State Legal Services
Last updated: November 2013
Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles on IllinoisLegalAid.org: Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.
This section deals with child custody and visitation issues that may affect grandparents' relationships with their grandchildren. The section covers different types of custodial arrangements. It also covers those programs which provide financial or other assistance to grandparents in order to help them raise their grandchildren.
“Visitation” refers to the time a grandparent spends with a grandchild, usually outside the presence of a parent, but not always. It could also include electronic communications, like phone or video calls. In many families, this arrangement works out just fine, and the grandparents may spend such time with their grandchild(ren) for all or part of a day, or overnight, or for an even more extended visit. In most cases, the relationship between child and grandparents is nurturing and loving, and such visitation is encouraged by the parents.
On the other hand, sometimes a parent or both parents object to visitation, and may deny the grandparent the ability to have visitation with the child. When this family conflict occurs, or in other circumstances, grandparents may feel the need to seek court ordered visitation.
Grandparents may seek court ordered visitation with their grandchildren under limited circumstances, discussed below. For several years before that, grandparents in Illinois could not obtain court ordered visitation at all. That was because an Illinois Supreme Court decision had struck down as unconstitutional the Illinois grandparent visitation law that existed at that time.
As of January 1, 2007, there is an Illinois law which allows grandparents, great-grandparents and some siblings of children to bring petitions to visit the children under certain limited circumstances.
The Illinois Supreme Court found that law to unreasonably interfere with parents’ fundamental interests to raise their children as they see fit. The Court recognized that the custodial parent or parents can determine whether and to what extent grandparents can have visitation with their grandchildren.
If you have a visitation question or issue, you should consult with an attorney. Trial courts have disagreed over whether there are any circumstances allowing grandparent visitation under the “common law” that existed prior to the enactment of the unconstitutional (former) grandparent visitation statute.
It is hard for grandparents to get court ordered visitation. That is because there is a presumption in favor of the parent’s decision, and the law acknowledges a parent’s fundamental right to parent his or her child.
Note: Whenever we refer to “grandparents” here, we are also referring to great-parents. The law also applies to some siblings of children.
To overcome that presumption, the grandparent must show 2 things.
First, that a parent has unreasonably denied visitation and that the other parent is deceased or has been missing for at least three months. In order to show that the denial was unreasonable, the grandparent must prove that the parent’s actions and decisions regarding visitation are harmful to the child’s mental, physical or emotional health.
Second, even if the grandparents can prove a detrimental effect on the child’s health, the law requires that at least one of the following conditions must exist before a grandparent can file a Petition for Visitation:
Even if none of the above circumstances are present, courts generally will enforce currently existing court orders where the parents have agreed to allow grandparent visitation. Courts are obligated to uphold voluntary visitation agreements made by parents, except in very limited circumstances. We recommend that you consult with a knowledgeable attorney if you have any questions over whether such an agreement likely will be upheld.
In addition to the above requirements, the new law requires that a court take the following factors into account in deciding whether to grant a grandparent’s visitation request:
It is in the court’s discretion to decide the amount of visitation to allow. In the case of divorce or legal separation, the visitation cannot diminish the visitation allowed to the parent who is unrelated to the grandparent filing the Petition for Visitation. In the case of a parent whose parental rights have been terminated, the visitation cannot be used to allow the parent who lost those rights to visit with the child.
If the court deems it appropriate, the court can simply give the grandparent reasonable access to the child, without ordering overnight visitation, and can permit the parent to remain in the presence of the child during visitation.
If a court has entered an order prohibiting a non-custodial parent of a child from any contact or restricting contact with the child, the grandparent’s order of visitation with that child may be revoked if the court finds that the grandparent is found to have used his or her visitation privileges to facilitate contact between the child and the non-custodial parent or facilitates contact in a manner that violates the terms of the order restricting the non-custodial parent’s contact with the child.
A grandparent who has been convicted of any offense involving an illegal sex act perpetuated upon a victim 18 years old or younger is not entitled to visitation. The person would need to successfully complete a treatment program approved by the court in order for the court to consider visitation rights. The court will not enter a visitation order to a grandparent who has been convicted of first degree murder of the parent, grandparent, great-grandparent or sibling of the child who is the subject of the order. No person shall visit, with the child present, a person who has been convicted of first degree murder of the parent, grandparent, great-grandparent or sibling of the child without the consent of the child’s parent, other than a parent convicted of first degree murder, or legal guardian.
The court cannot modify such an order within 2 years of the order taking effect, unless the grandparent can prove that the child's mental, physical, or emotional health is in danger. Even after the 2 years, the court cannot modify the order without first holding a hearing, and making a decision based on new facts that have arisen since the prior order, or that were unknown to the court at the time of entry of the prior order. Based on those facts, the court may modify a prior order only if it finds by “clear and convincing evidence” that:
Note: Attorney’s fees and court costs will be assessed against the party seeking the modification if the court finds that the modification action is vexatious and constitutes harassment.
Court proceedings to establish visitation are neither fast nor easy. Finding ways to reduce hostilities with the parents might be a quicker route to establishing visitation rights. If all parties are agreeable, they may want to look to outside mediation to find acceptable ways of arranging for visitation.
In recent years there has been increased awareness of grandparents who are raising their grandchildren. There can be many reasons why grandparents become custodians. There may have been tragedy or trouble involving the child’s parents, including death, illness, incarceration or severe substance abuse problems. In other cases, the parent of the grandchild may request the help of the grandparent, or sometimes, a parent’s abuse or neglect of the child forces the State to place the child with the grandparent or other family member. In other instances, the grandparent may feel that they must take action to remove the child from the parent for the safety of the child.
While caring for grandchildren may start out as an informal agreement, there are many reasons why the custodial relationship should be formalized, through legal proceedings, such as guardianship or legal custody. Such legal status may be necessary to provide consent to medical care or to obtain financial assistance. In addition, a court order for custody or guardianship may well be necessary if you have particular concerns about a parent:
This section includes brief information about guardianship and custody. It is highly advisable that you consult an attorney regarding your specific situation.
Illinois law permits you to bring a legal proceeding to become a child’s legal guardian. If the guardianship is appropriate and the right person is available to act as guardian, a guardianship can benefit a minor.
Be wary of school officials who tell you that you must obtain a guardianship to enroll your grandchild in school. This information is incorrect. Under Illinois law, no guardianship or custody order is necessary to enroll a child in the school district where you live as long as the child is living with you (and spending nights with you) and you either receive public assistance for that child or you have accepted responsibility for the child. However, you must show that the child is not living with you solely because you want the child enrolled in your school district.
Reasons for Guardianships of Minors
As a general rule, only a child’s parents have the legal right to make decisions concerning the care and upbringing of that child. Legal guardianship of a minor is one process for granting that legal authority to someone other than the child’s parents. This is usually done only in cases where the child is not in the care of a parent because the parent is unable to care for the child.
How to Obtain Guardianship of a Minor
If the parents are unable to care for the child, you must file a petition in court. The petition will identify the child, the child’s parents and siblings, the proposed guardian, the child’s financial circumstances and the reasons why a guardianship is needed. You must send a notice of the court hearing to the child’s parents and adult siblings and to the child, if he or she is over 14. At the court hearing, the judge decides whether the guardianship is in the child’s best interests. The law presumes that the child is best placed with a parent, so you would have the burden to prove otherwise if a parent objects to the guardianship.
The judge may appoint a guardian ad litem (GAL) to investigate the facts of the case, and decide what would be in the child’s best interests. The GAL makes a report to the judge about who should be given the responsibility for the care of the child. The judge considers the GAL’s opinion in making the final decision.
The Duties of the Child’s Guardian
The legal guardian of a child has the same responsibilities as though he or she were the child’s natural parent. The extent of these duties will vary depending on whether the court appoints the person as a “guardian of the person” or a “guardian of the estate,” or both. Under both types of guardianship, you are required to report to the court, generally once per year, regarding the child’s well-being and/or finances.
A “guardian of the person” creates a duty to feed, clothe, and house the child, and to make decisions concerning the child’s education and health care. It does not allow you to control the minor child’s income or assets.
A “guardian of the estate” creates a duty to make decisions regarding the child’s income or assets and to properly protect and/or invest that income.
The guardianship will remain in effect until the child reaches age 18, unless it is changed by court order before that time.
There may be situations where a grandparent will not be able to obtain consent from the parents for custody and may want to formalize a custodial relationship with a court order for custody. This type of custodial arrangement provides for stability of the minor child. Once custody is awarded, it is difficult to change unless there are extraordinary circumstances.
To obtain such a court order, the grandparent must file a Petition for Child Custody. However, a grandparent has “standing” to file such a petition only in limited circumstances. “Standing” refers to the legal right to initiate a legal proceeding. At the present time, a grandparent has “standing” to file a petition for custody only under two different sets of circumstances:
Child Not in Physical Custody of Either Parent
First, a grandparent has standing to file a Petition if the child is not in the physical custody of one of his parents. In that case, the grandparent may file a petition for custody of the child in the county in which the child is permanently resident or found.
In this situation, you must show that the parents have voluntarily given up their rights and the proposed custodial arrangement is in the child’s best interests. The factors establishing whether or not the parents have “voluntarily given up” their rights are:
Grandparent Filing Petition is a Parent of Child’s Deceased Parent
Second, a grandparent has standing to file a Petition when one of the parents is deceased, and the grandparent filing the Petition is a parent or stepparent of the deceased parent. However, one or more of the following conditions must have existed at the time of the parent’s death:
If the court rules favorably on your petition, the court will enter an order that awards you legal custody of the child or children.
Any adult or agency can file a petition alleging that a minor child is either:
If the allegations are proven, the juvenile court has the legal authority to place the minor child with a relative or other third party, including the grandparents. The caretaker may be designated as either the legal custodian or guardian of the person of the minor child. Because the goal of these types of proceedings is reunification of the family, the natural parent may petition the court for legal custody of the minor child at any time unless his or her parental rights have been terminated.
In some cases, grandparents may seek to adopt their grandchild or grandchildren. This is the most final of the custodial arrangements because the grandparent assumes all the duties and obligations of the parent, including the financial obligations. A natural parent can consent to the adoption. The consent must be in writing and before the judge.
If the natural parent will not consent, you may seek to terminate the parent’s rights by asking the court to find that the parent is unfit. You should be aware that a contested adoption case could be quite costly.
Grandparents and older relatives over the age of 60 raising grandchildren or children are also eligible for services under the Illinois Family Caregiver Support Program. This program offers five basic services to care-givers:
The Illinois Caregiver Support Program can also provide services to any family caregiver who provides in-home and community care of an older person. For more information on the Caregiver Program, the local Area Agency on Aging is one of the first resources a care-giver should contact when help is needed. In addition, over 100 Caregiver Resource Centers throughout Illinois have been identified to link care-givers to services. To find a resource center near you, you can contact your local Area Agency on Aging.
Depending on the type of custodial arrangement a grandparent has for their grandchild, there may be different sources of financial assistance available to help with the costs of raising the grandchild. This section will address the different types of financial assistance that may be available to you and will explain when such assistance is available.
The Illinois Department of Human Services (DHS) administers the TANF program. TANF provides financial assistance to help families care for children who need financial help. You do not need to be the legal custodian or guardian of the minor child to receive TANF assistance. You have to meet certain financial eligibility criteria in order to qualify for TANF assistance. If you wish to receive cash assistance for your grandchild but not yourself, DHS will not count your income and assets when determining eligibility for this kind of a grant, called a child only TANF grant.
The Illinois Department of Healthcare and Family Services (HFS) administers a health care program called Famiy Care. This program offers health care coverage to children. Grandparents can get these benefits for a minor child who lives with them. To qualify, the household income must be less than 138% of the federal poverty guidelines. Family Care services are either available at no cost or low cost.
DHS also administers the Food Stamp program. See the section in Chapter 1 of this Handbook titled “Food Stamp Program.”
DHS also administers the Child Care Assistance Program to help with child care costs for children under the age of 13. If you are a working grandparent, or are involved in a TANF work related program, you might be eligible to get your daycare costs paid.
The Social Security Administration administers the SSI program. Parents and guardians can apply for cash assistance for blind or disabled children under the age of 18. The child’s disability must be expected to last for a period of 12 months or to result in the child’s death. See the section in Chapter 1 of this Handbook titled “Supplemental Security Income (SSI).”
If you are a grandparent or stepgrandparent caring for a grandchild under age 18 (or under age 22 for a full time student) and you receive Social Security Retirement or Disability benefits, the child may be eligible to receive a dependent child’s benefit too. The child’s parents must have been deceased or disabled and the child must have been dependent on you at the time you became eligible for the Social Security benefits. The child is dependent if you provided at least half of his or her support and he or she was living with you for one year before you became eligible for benefits. The benefits can be very significant, half of your primary insurance amount, unless you have other dependents who are eligible to receive benefits. The amount is not taken from your benefit. It is an additional benefit for the child.
If the child was living with and dependent on a parent, step-parent, grandparent or step-grandparent when that person died, the child may be eligible to receive a child’s benefit on the deceased’s Social Security account. Consult with Social Security about the possible benefits.
Unless you adopt your grandchild, the responsibility to support the child remains with the parent. In order to obtain child support, you need to file a court petition and ask the court to order the parents to pay you child support. You can get assistance with collecting child support through the Child Support Enforcement program administered by the Illinois Department of Healthcare and Family Services. If you receive a TANF child only grant, you will be allowed to keep the grant plus $50.00 of the child support payment each month. If the child support payment is more than the TANF child only grant, you will just receive the child support payment, and TANF cash eligibility will end.
In certain circumstances, guardians and grandparents can receive foster care payments from the Illinois Department of Children and Family Services. To do so, there must be a case in juvenile court to determine whether the child is abused, neglected or a dependent in need of supervision. In addition, you must be a licensed foster care provider. The foster care payment is to be used to cover the cost of the child’s food, clothing and personal allowance. The amount of the payment is based on the child’s age and any special needs.
DHS also administers the WIC program. It is a federally funded supplemental food program for pregnant or breast feeding women, and infants and children up to age 5. You can also obtain free health care screenings to determine nutritional risk and to provide referrals to other community based agencies and providers.
A school district cannot require you to obtain legal guardianship or legal custody of a child before admitting your grandchild to the school for the area in which you live. If the child lives with you for purposes other than to go to school in your school district or if you receive public assistance on behalf of the child, the child may attend school where you live. You should give the school district a written statement that the child lives with you for purposes other than to attend school. If you receive public assistance for the child, you may wish to include that fact in your statement.
The Illinois Department of Public Health runs an immunization program. You can bring your grandchild to free clinics for immunization shots regardless of whether you have custody or guardianship of the child.
Emergency health care providers generally treat children in cases of emergencies no matter who has legal custody of the children. The importance of parental consent increases as the level of care needed for the child increases. At the very least, you may want to obtain written consent for medical treatment from the parents before obtaining medical treatment for your grandchild.
Illinois Department of Children and Family Services (DCFS)
To report suspected abuse you can call one of the following numbers:
217-524-2606 (outside Illinois).
You may also contact DCFS at one of the following offices:
100 W. Randolph St.
Chicago, IL 60601
406 East Monroe
Springfield, IL 62701-1498
Illinois Department of Human Services
To make an application, you should contact your local office which should be listed in the telephone book.
Illinois Department of Healthcare and Family Services
To make an application, you should contact your local office which should be listed in the telephone book.
Illinois Department of Public Health
535 West Jefferson St.
Springfield, IL 62761
800-252-4343 (toll free)
800-633-4227 (toll free) Medicare
Social Security Administration
Application or SSA office locations:
800-772-1213 (toll free)
Illinois Legal Aid
Legal self help and referrals
Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=1396
We welcome your comments and suggestions