States differ as to who may be awarded visitation with a minor child. They range from California where it is in the discretion of the court to grant reasonable visitation rights in the best interest in the child’s welfare, to a state like Florida where only grandparents may be awarded visitation.
In Illinois, non-parental visitation is governed by the Illinois Marriage and Dissolution of Marriage Act. Illinois is closer to California on the non-parental visitation spectrum but has limited visitation by nonparents to the following categories: grandparent or great-grandparent, siblings, and step-parents. 750 ILCS 5/602.9(c)(West 2021). Under this section of the Act, “siblings” includes full siblings, half siblings, and step-siblings; and “step-parent” includes one that was married to the parent of a child immediately before the parent’s death.
Further, to bring a suit for visitation there must be an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and at least one of the following conditions must exist:
(A) the child's other parent is deceased or has been missing for at least 90 days,
(B) a parent of the child is incompetent as a matter of law,
(C) a parent has been incarcerated in jail or prison for a period in excess of 90 days,
(D) the child's parents have been granted a dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child, or
(E) (i)the child is born to parents who are not married to each other; (ii) the parents are not living together; (iii) the petitioner is a grandparent, great-grandparent, step-parent, or sibling of the child; and (iv) the parent-child relationship has been legally established.
750 ILCS 5/602.9(c)(1) (West 2021).
The above does not apply to a child that has been adopted by an unrelated person, or the child has been voluntarily surrendered or relinquished pursuant to the Abandoned Newborn Infant Protection Act.
If visitation is sought pursuant to a divorce or separation, the visitation of the grandparent, great-grandparent, step-parent, or sibling cannot diminish the parenting time of the parent who is not related to the grandparent, great-grandparent, step-parent, or sibling seeking visitation.
However, meeting the statutory requirements to bring the petition is not the end of the determination. There is a presumption that a fit parent’s decision making is in the best interests of the child and thus not harmful, so the person petitioning for visitation must prove that the parent's actions and decisions regarding visitation will cause undue harm to the child's mental, physical, or emotional health. Additionally, the court still considers the following in determining visitation:
(A) the wishes of the child, taking into account the child's maturity and ability to express reasoned and independent preferences as to visitation;
(B) the mental and physical health of the child;
(C) the mental and physical health of the grandparent, great-grandparent, sibling, or step-parent;
(D) the length and quality of the prior relationship between the child and the grandparent, great-grandparent, sibling, or step-parent;
(E) the good faith of the party in filing the petition;
(F) the good faith of the person denying visitation;
(G) the quantity of the visitation time requested and the potential adverse impact that visitation would have on the child's customary activities;
(H) any other fact that establishes that the loss of the relationship between the petitioner and the child is likely to unduly harm the child's mental, physical, or emotional health; and
(I) whether visitation can be structured in a way to minimize the child's exposure to conflicts between the adults.
750 ILCS 5/602.9(B)(5) (West 2021).
Alternatively, under the Probate Act of 1975, if both of the child’s parents are deceased, “[I]n the discretion of the court, reasonable visitation rights may be granted to any other relative of the minor or other person having an interest in the welfare of the child” subject to the best interests of the child. 755 ILCS 5/11-7.1 (West 2021). However, again this does not apply if the child was adopted by someone other than a close relation. If the child has been adopted by a close relative, the person seeking visitation must still show they have been unreasonably denied visitation with the child. This visitation statute is broader in that it includes aunts, uncles, and first cousins as well as grandparents and siblings, but it is not limited to them as the statute includes the language “other person having an interest in the welfare of the child.”
Visitation by a non-parent is possible but it is largely within the court’s discretion, there are many hurdles to overcome, and it all must be done with the best interests of the child in mind.