How to File for Grandparent Visitation in Illinois

What a visitation petition asks the court to do

A petition under 750 ILCS 5/602.9 asks a judge to order in-person time between the child and a grandparent, great-grandparent, sibling or stepparent over a parent's objection. In the right case the court can add electronic communication, such as video calls. The court can also order reasonable access without overnights.

Visitation is not custody. It does not give the petitioner decision-making for the child or a right to the child's home. It is a limited, court-ordered schedule.

Who can ask for visitation under 602.9

Section 602.9(c) lets grandparents, great-grandparents, stepparents and siblings petition for a child who is at least one year old. A sibling includes a half-sibling or stepsibling. A stepparent is a person married to the child's parent, including someone married to the parent immediately before the parent's death.

The section does not apply in some situations, including when a juvenile court abuse or neglect petition is pending, when an unrelated person has a pending adoption petition or has adopted the child, or when the child was voluntarily surrendered, except to DCFS or a foster care facility. A grandparent also cannot file under subsection (c) if parentage between the child and the related parent has not been legally established.

The unreasonable denial requirement and the triggering events

Every petition requires two things: a parent unreasonably denied visitation, and the denial caused the child undue mental, physical or emotional harm. In addition, at least one of these conditions must exist:

1. The child's other parent has died or has been missing for at least 90 days and reported missing to law enforcement.
2. A parent has been found legally incompetent.
3. A parent was in jail or prison for more than 90 days immediately before the petition was filed.
4. The parents are divorced or legally separated, or a divorce or other parenting case is pending, and at least one parent does not object to the visitation. This visitation cannot reduce the parenting time of the parent who is not related to the petitioner.
5. The child was born to parents who are not married to each other, the parents are not living together, and legal parentage has been established with the related parent.

The presumption in favor of the parent

Section 602.9(b)(4) creates a rebuttable presumption that a fit parent's actions and decisions about grandparent, great-grandparent, sibling or stepparent visitation are not harmful to the child's mental, physical or emotional health. The person filing carries the burden of proving that the parent's decisions will cause the child undue harm.

In practice, that means the case is about the child, not about the grandparent's loss. Evidence of a long, close relationship helps, but the court looks for proof that losing the relationship is likely to harm this child.

Filing the petition in Cook County

If a divorce or other parenting case is already pending, the petition can be filed in that case. If not, it must be filed in the county where the child lives. In Cook County, the Domestic Relations Division hears third-party visitation cases at the Richard J. Daley Center and the suburban district courthouses.

1. Confirm you qualify: the child's age, your relationship, a triggering condition and the denial.
2. Prepare a petition that sets out those facts and the harm to the child.
3. File it and pay the filing fee, which varies by case type; ask the Clerk of the Circuit Court or request a fee waiver if you cannot pay.
4. Give notice. Under Section 601.2(c), written notice and a copy of the petition must be served on the parents, any guardian and certain others at least 30 days before any hearing.
5. Attend mediation. Cook County Circuit Court Rule 13.4 makes mediation mandatory for non-parent visitation disputes unless an impediment exists.
6. Prepare for a hearing if mediation does not resolve the case.

Bring photos and calendars showing past time together, messages showing the denial, records of the qualifying event, such as a death certificate, divorce judgment or parentage order, and anything showing the child's reaction, such as school or counseling notes.

Factors the judge weighs

Under Section 602.9(b)(5), the court considers the child's wishes given maturity, the mental and physical health of the child and the petitioner, the length and quality of the prior relationship, the good faith of both the petitioner and the parent denying visitation, how much time is requested and how it would affect the child's usual activities, any other fact showing the loss is likely to unduly harm the child, and whether visits can be structured to keep the child out of adult conflict.

The court should also consider whether the child lived with the petitioner for at least 6 consecutive months, had frequent and regular contact for at least 12 consecutive months, or was cared for primarily by the petitioner for at least 6 consecutive months within the 24 months before the case began.

After an order: changes and limits

Unless the parties agree, no motion to modify a visitation order may be filed earlier than 2 years after the order, except on affidavits showing the child's present environment may seriously endanger the child. A change then requires clear and convincing evidence. Visitation granted before an adoption petition ends automatically when an adoption is granted or parental rights are terminated, though a grandparent keeps standing to ask again if the adopting parent is a relative.

The statute also limits or bars visitation for people convicted of certain sex offenses against children or of first degree murder of the child's parent, grandparent, great-grandparent or sibling. If a criminal charge is pending against anyone involved, that person needs a criminal defense lawyer; this firm handles family law only.

What the parent can do

A parent who receives the petition can file an appearance and a response. Common responses are that no triggering condition exists, that the denial was reasonable, or that the child is not being harmed. A parent can also offer limited or supervised contact, ask the court to structure visits around the child's schedule, raise an impediment to mediation, or ask the court to appoint a guardian ad litem to look into the child's situation.

Timelines vary. The 30-day notice rule, mediation and the court's calendar all affect how long a case takes, so plan for months rather than weeks. A parent may always ask to modify visitation when changed circumstances make a change necessary for the child's best interests.

When guardianship or custody is the better path

Visitation fits when the child lives with a parent who is limiting contact. Other routes fit other facts:

• If the child already lives with you and the parents cannot care for the child, see how to get guardianship of a child in Illinois.
• If the child is not in the physical custody of either parent, a non-parent may be able to petition for allocation of parental responsibilities.
• If a relative will raise the child permanently with parental consent, a related adoption may fit; see stepparent adoption in Illinois.

Common mistakes to avoid

• Filing without a triggering condition. Strong feelings do not create standing.
• Arguing about your loss instead of the child's harm. The burden is on harm to the child.
• Going around the parent. Showing up at school or practice can hurt your case.
• Asking for too much time. Requests that disrupt the child's routine weigh against you.
• Skipping the paper trail. Keep dated records of contact and of each refusal.

How Chicago Family Attorneys can help

Chicago Family Attorneys handles family law only from 53 W Jackson Blvd, Suite 752, in the Chicago Loop, serving Cook, DuPage, Will and Lake Counties. Attorney Aaron Korson can review whether you have standing, prepare the petition and notice, represent you in mediation and at hearings, and respond if a parent seeks to modify an existing order. See our grandparent rights lawyer page.

• Full representation. An initial payment of $1,500 to $2,500, then $500 to $650 per month beginning 30 days after the initial payment while representation remains active.
• Limited scope. A flat fee for a defined task, such as drafting the petition, quoted after a consultation.

Court costs are separate. See grandparent visitation lawyer costs and, if guardianship may fit better, our minor guardianship services. For background on parenting law, read Illinois parenting time and decision-making laws.