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Can Grandparents Get Custody Without a Parent’s Permission?

 Posted on December 26, 2024 in Child Custody

IL family lawyerDivorce does not just break up a mother, father, and children; it can also have a significant impact on extended family members as well. Grandparents who have been involved in the lives of their grandchildren on a regular basis may see them seldom following a divorce. Some grandparents even ask for visitation rights or, in rare cases, parental rights.

Every situation is different, so the outcome is always tailored to each unique family. Judges in family court have one goal when it comes to anything to do with children: whether something is in the child's best interests. Will what is being asked by a parent or grandparent benefit the child in some way? Will the child suffer harm if the request is denied?

Illinois courts also believe that it is in a child’s best interest to have regular interactions with both parents. Terminating a parent’s rights in favor of a grandparent would rarely be considered because, under most circumstances, such a move would not be in the child's best interests. If you find yourself in a situation where a grandparent is seeking parental rights for your child, or you are the grandparent seeking those rights, speaking to an experienced Wheaton, IL family law attorney can be beneficial.

Parental Authority is Usually Considered Absolute, Even for Grandparent Visitation

Parental authority or responsibilities in the state encompasses decision-making power for the child as well as parenting time. Until proven otherwise, parents are presumed to be fit to raise their child and make decisions on the child’s behalf, so a grandparent cannot simply file for visitation rights and expect the court to grant them. Courts, of course, attempt to balance the parents' authority with the child's best interests.

A grandparent seeking visitation is likely to be denied, even when the court only hears the wishes of the parent (assuming the parent does not want the grandparent to have scheduled time with the child). The grandparent would be responsible for overcoming the presumption that any decisions made by the parent will be in the child’s best interests.

A grandparent would have to definitively demonstrate that the parent’s decisions are inconsistent with the child's best interests. While a grandparent’s request for visitation would not be disregarded out of hand, it would have to be proven that it is either extremely beneficial for the child to see his or her grandparents or that harm will come to the child if no grandparent visitation is allowed.

Regarding visitation rights, grandparents are not presumed to have an automatic legal right to a relationship with their grandchildren. A state family law judge could award some level of visitation to grandparents but is not legally obligated to do so. The court will also expect the grandparents to make a good-faith effort to resolve the issues with the child’s parent or parents before making it a court matter. Visitation rights for a grandparent would require at least one of the following:

  • At least one parent does not object to the grandparent having official visitation time.
  • There is a previous grandparent-grandchild relationship.
  • One parent is deceased or has been missing for at least three months.
  • One parent has been deemed incompetent or is incarcerated.
  • A current guardianship case is pending.
  • There has been an unreasonable denial of the grandparent/grandchild relationship by a parent.

Could a Grandparent Be Awarded Parental Rights?  

The short answer to this question is "rarely." A court will seldom award parental rights for a child to grandparents over the parent’s objections unless the situation is extreme. Illinois courts will always prioritize leaving a child in the care of his or her biological parents. If the child is currently in the care of a non-biological parent, then a grandparent could conceivably be awarded parental rights, but not when there is a biological parent who is fit to parent the child and does not want the grandparent to have custody.

If one or both parents are truly unfit, then a grandparent might also be awarded custody of a child, even over the parent’s objections. Proving a parent is unfit is no easy task. A parent does not necessarily have to prove he or she is not a fit parent; rather, the person alleging unfitness bears the burden of proof. The following are potential situations in which a parent could be judged unfit:

  • The parent abandoned the child.
  • The parent has failed to maintain a reasonable degree of responsibility, concern, or interest in the child’s welfare.
  • The parent has repeatedly or continuously exhibited substantial neglect of the child.
  • The parent has committed extreme or repeated acts of cruelty to the child.
  • There has been a continuous failure on the part of the parent to protect the child from conditions in his or her environment that negatively impact the child.
  • The parent has been convicted of a crime that shows depravity.
  • The parent has a mental impairment or mental illness that prevents him or her from properly caring for the child.
  • There has been a continuous failure on the part of the parent to provide the child with adequate shelter, food, clothing, or medical care.
  • The parent has a severe addiction to drugs or alcohol that prevents him or her from caring for the child.
  • The child has been found to have drugs in his or her system.

As you can see, there is a high bar when proving a parent is unfit. Grandparents will virtually never be granted parental rights for a child when one or both parents object and are not considered unfit as parents.

Contact a DuPage County, IL Family Lawyer

Navigating grandparents’ rights can be challenging, so it is necessary to understand the law and the legal process. When you have a Wheaton, IL allocation of parental responsibilities attorney from The Stogsdill Law Firm, P.C. as your legal advocate, you can be sure the child’s best interests will always be a priority.  Our law firm is one of the largest and most prestigious in the area. We take pride in the experience, knowledge, and skills we bring to the table. Contact The Stogsdill Law Firm, P.C. at 630-462-9500 to schedule an initial meeting.    

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