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IN THE PAST 25 YEARS, FEW AREAS OF FAMILY IN THE PAST 25 YEARS,
FEW AREAS OF FAMILY LAW HAVE CHANGED MORE DRAMATICALLY THAN THOSE
CONCERNING GRANDPARENTS.
Between 2005 and 2007, the Illinois Legislature passed a series
of amendments to the Illinois Marriage and Dissolution of Marriage
Act addressing grandparent visitation. In Flynn v. Henkel,
227 Ill.2d 176 (Ill. 2007), the Illinois Supreme Court ruled on
some of these amendments, lending tremendous insight into the
Illinois Supreme Court's current opinion on grandparent
visitation. Effective January 1, 2007, the Illinois Legislature
passed the following series of amendments concerning grandparent
visitation:
The Grandparent Visitation Act no longer applies to children
less then one year old. 750 ILCS 5/607(a-3).
The new amendment contains a specific venue provision such that
"[a] petition for visitation with a child by a person other
than a parent must be filed in the county in which the child
resides." 750 ILCS 5/607(a-3).
The statute now allows a grandparent to petition for visitation
during a "pending dissolution proceeding or any other
proceeding that involves custody or visitation issues." 750
ILCS 5/607(a-3).
A grandparent will be able to petition for visitation if a
parent "has been missing for at least 3 months."750 ILCS
5/607(a-5)(1)(A-5).
The statute allows for a grandparent to petition for visitation
if the parent has been "incarcerated in jail or prison during
the 3 month period preceding the filing of the petition." 750
ILCS 5/607(a-5)(1)(A-15).
If a child is adopted by a relative or a stepparent, a
grandparent still has standing to petition for visitation after the
adoption, which is in stark contrast to the old law which forbade a
grandparent to petition for visitation after the child had been
adopted. 750 ILCS 5/607(a-5)(1)(B).
In Flynn, the Illinois Supreme Court interpreted the
new laws to mean that a grandparent seeking court-ordered
visitation must prove that the child's mental, emotional, or
physical health will be harmed if visitation is denied, and the
fact that a child simply will be cut off from one side of the
family if visitation is stopped is not enough to prove harm to the
child. For now, Flynn is the controlling opinion for grandparents
seeking visitation in Illinois, although the constitutionality of
these new provisions has not yet been challenged. (Practitioners
will recall that in 2002, n Wickham v. Byrne,
199 Ill.2d 309 (Ill. 2002), the Illinois Supreme Court held the
prior grandparent visitation statute unconstitutional on its face
because it infringed on the natural parents' fundamental right
"to make decisions concerning the care, custody, and control
of their children without unwarranted statute intrusion.")
This article is adapted from Chapter 12 of the 2008 Edition
of Advising Elderly Clients and Their Families (IICLE, 2008), which
chapter was authored by Andrea K. Muchin of Schiller DuCanto &
Fleck LLP, with assistance from law clerk Eric T.Saar.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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