James M. Quigley, Esq.Jordan D. Rosenberg, Esq.

Grandparent’s Rights…A Closer Look

Grandparent Visitation

Standing

Standard of Review

Section 607(a)(3)•Grandparent (Great-Grandparent/Sibling), and•One (1) year old or older, and•Unreasonable Denial of Visitation• Court found that an “unreasonable denial of

visitation,” is an issue of standing which is an affirmative defense that can be waived, if not raised (See Robinson); and

•One parent either: Dead; Missing; Incompetent as a Matter of Law; Incarcerated; Divorced, Legally Separated, or Pending Dissolution Proceeding; Born out of Wedlock, and Parents not living together; and•No pending case in Juvenile Court, or adoption.

Grandparent VisitationStanding

• There is a rebuttable presumption that a fit parent’s actions and decisions regarding such visitation are not harmful to the child’s mental, physical, or emotional health, and the grandparent has the burden of proving that the parent’s actions and decisions regarding visitation times are harmful to the child’s mental, physical, or emotional health.• 750 ILCS 607(a-5)(3).

• “A trial court’s determination that a fit parent’s decision regarding whether grandparent visitation is or is not harmful to the child’s mental, physical, or emotional health will not be disturbed on review unless it is contrary to the manifest weight of the evidence.”• Robinson v. Reif, 2014 IL App (4th) 140244 (2014), citing Flynn v. Henkel, 227

Ill.2d 176, 181 (Ill. 2007).

Grandparent VisitationStandard of

Review

• Affirmed trial court’s decision awarding grandparent visitation.

• The Appellate Court found that the children had formed an attachment to grandparents, which, if broken, would cause the children emotional harm.

• Specifically the Court noted the following:1. The strong bond between grandparents and children;

2. The specific examples the grandparents provided for the children and the specific activities they enjoyed together;

3. How child reacted after living for 18 months with grandparents and suddenly removed;

Ex. Nighttime behavior, bed wetting, etc.

4. Expert testimony that child would be emotionally harmed.

“The trial court had an opportunity to observe both parents and grandparents in person, study their demeanor, and listen to their testimony. The court was in a better position than the Appellate Court to judge whether defendant's actions and decisions regarding visitation were harmful to the children.”

Robinson v. Reif2014 IL App (4th) 140244 (2014)

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

• Struck down Washington statute that permitted any person to seek visitation if the same met the best interests test.

• The statute “gave no special weight at all to [the mother's] determination of her daughters' best interests.”

Wickham v. Byrne, 199 Ill. 2d 309 (2002)

• Held unconstitutional Illinois’ grandparent visitation statute, which permitted a grandparent/sibling to Petition the Court for visitation if it satisfied the best interest test.

• Court reasoned that Section 607(b)(1), as it was previously written, “exposes the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micro-managing of the state.”

• In its wake, Illinois enumerated 607(a-5)(1) and 607(a-5)(3).

Robinson v. Reif, 2014 IL App (4th) 140244 (2014)

• Stands for the proposition that the act focuses on harm to the children, not the relationship between the litigating parties.

Grandparent Visitation:History

• Presumption that the right or interests of a natural parent in the care, custody and control of a child is superior to the claim of a third person.

• The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling questions of where the best interest of the child lie.

In Re R.L.S., 218 Ill. 2d 428 (Ill. 2006).

Grandparent Custody:Superior Rights Doctrine

Section 601(b) of the IMDMA delineates the standing requirements in a child custody action for both parents and non-parents and provides in relevant part:

(b) A child custody proceeding is commenced in the court:

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(2) by a person other than parent, by filing a petition for custody of the child in the county in which he is permanently a resident or found, but only if he is not in the physical custody of one of his parents.

Grandparent Custody:Statutory Authority

3 Prong Test:

Let’s Break It Down…

1. Jurisdiction (Venue)

2. Standing

3. Best Interests Analysis (5/602)

• Section 601(b)(2) provides a jurisdictional requirement for nonparent custody disputes:

“…by filing a petition for custody of the child in the county in which he is permanently a resident or found.”

Grandparent Custody

1. Jurisdiction (Venue)

Distinction between POSSESSION and CUSTODY

• Does not turn on who is in physical possession of the child at the moment the custody petition is filed, “to hold differently would be to encourage abductions of minors in order to satisfy the literal terms of the standing requirement.”

In re Custody of Peterson, 112 Ill.2d 48, 54 (Ill. 1986)>

• Burden is on nonparent to show that the parents no longer have physical custody of the child because the parents “voluntarily and indefinitely relinquished custody of the child.”

In re Custody of M.C.C., 383 Ill.App.3d 913, 917 (1st Dist. 2008).

Grandparent Custody2. Standing: 601(b)(2)

“child is NOT in the physical custody of his/her parents”

To determine whether a parent “voluntarily and indefinitely relinquished custody,” the court should consider a number of factors, including but not limited to:

1. How the nonparent obtained physical possession;

2. Nature of possession;

3. The duration of the possession; and

4. Who was responsible for providing the child’s care, custody and welfare prior to initiating the suit.

• In re Marriage of Santa Cruz, 172 Ill.App.3d 775, 783 (2d Dist. 1988);

• Dumiak v. Kinzer-Somerville, 2013 IL App (2d) 130336

• No one factor is controlling, and the determination is highly fact-dependent.

Grandparent Custody

2. Standing

A non-parent third party that fails to meet the section 601(b)(2) standing requirements is forced to proceed under the stricter standards of the Adoption Act or the Juvenile Court Act

Adoption Act:• Petitioner is required to prove by clear and convincing evidence that the

parent is “unfit.”• In re Adoption of Markham , 91 Ill.App.3d 1122 (3d Dist. 1981).

• Only after this showing has been made, will the court apply the best interests of the child standard to determine whether custody should be awarded to the third party. • In re Abdullah, 85 Ill.2d 300 (Ill. 1981).

Juvenile Court Act:• Petitioner is required to show that a minor child is delinquent, in need of

supervision, neglected, or dependent and then a child should be removed from the custody of his parents “only when his welfare or safety or protection of the public cannot be adequately safeguarded without removal.”• Ill.Rev.Stat.1981, ch. 37, par. 701–2(1).

Grandparent Custody:No Standing Under IMDMA

• 7 year old grand-child (“GC”);

• Since GC’s birth, Mom voluntarily left Grandma with day-to-day responsibilities – GC calls Grandma “Mom;”

• Grandma enrolls GC in private school, schedules medical appointments and makes all religious decisions;

• Grandma, Mom and GC have all lived at Grandma’s home until Mom left with GC to live 5 miles away with GC’s non-judicially established father (“Dad”) after his release from prison;

• Mom has mental health issues;

• Allegations that Dad was historically abusive to Mom and GC;

• Mom has denied all visitation with GC since she moved outside the home. GC has not seen or spoken to Grandma in 6 months;

• Since moving, GC attends same school, sees same doctors and attends same religious activities;

• Since moving, GC’s grades have fallen, GC is acting out at school and is exhibiting other behavioral issues as noted by Child Representative;

• Grandma brings an independent action.

Case Hypothetical

James M. Quigley, Esq.Jordan D. Rosenberg, Esq.

2275 Half Day Road, Suite 350

Bannockburn, IL 60015

(847) 681-9600

JMQuigley@BeermannLaw.com

THANK YOU!