Visitation Rights Petition: Grandparent, Great-Grandparent, Sibling

 Posted on June 03, 2014 in Children of Divorce

Kane County family law attorney, legally incompetent, petition for visitation, visitation rights, grandparents rights, primary caretakerFamily dynamics are complicated. It is not uncommon for a parent to seek visitation rights following a divorce. However, a parent might not be the only family member who wants these rights.

After a divorce, a grandparent, great-grandparent or sibling might want visitation rights as well. There might also be other situations when a family member would petition for visitation, such as when he or she has been unfairly denied by one of the child’s parents.

If one parent has unreasonably denied visitation to a grandparent, great-grandparent or sibling, then one of these individuals may petition for visitation rights. In order for the petition to succeed, one of the following circumstances must exist:

  • The child’s other parent must be dead or must have been missing for at least three months (a parent is missing if his or her location is indeterminate and his or her absence has been reported to law enforcement);
  • A parent is deemed legally incompetent;
  • During the three-month period before the petition is filed a parent has been incarcerated;
  • The parents are divorcing and custody is being determined (or there is another legal proceeding that involves custody), and at least one of the parents does not object to visitation;
  • The child was born when the parents were not married, the parents do not live together, and the petitioner is related to the mother; or
  • The child was born when the parents were not married, the parents do not live together, paternity has been established, and the petitioner is related to the father.

Any visitation rights awarded to a grandmother, great-grandmother or sibling cannot diminish the visitation rights of the parent who is unrelated to these individuals.

Parents are Presumed to Make Decisions in their Child’s Best Interests

There is a rebuttable presumption that a fit parent’s decision regarding another family member’s visitation does not harm the child’s physical, emotional or mental health. Basically, what this means is that the law assumes that a parent makes decisions with the child’s best interests in mind. The petitioning party has the burden of proving otherwise. When deciding whether to grant visitation rights, the court will consider various factors, including:

  • The child’s preference regarding visitation, if the child is determined to be of sufficient maturity;
  • The mental and physical health of the child;
  • The mental and physical health of the petitioner;
  • The length and quality of the relationship between the petitioner and the child;
  • The good faith of the party who filed the petition;
  • How much visitation time the party requested and whether that time would adversely affect the child’s customary activities;
  • Whether the child resided with the petitioner for six consecutive months and whether the current custodian was present;
  • Whether the petitioner had regular contact with the child for at least 12 consecutive months;
  • Any other evidence indicating that not granting visitation would be detrimental the child’s mental, physical or emotional health; and
  • Whether the petitioner was the child’s primary caretaker for at least six consecutive months.

Fighting for visitation rights can be an emotional process that is best undertaken with an experienced family law attorney on your side. Contact us today for a consultation. We can assist those in the St. Charles area.

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