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Factors that affect Grandparents who are Seeking Custody or Visitation of a Grandchild

Grandparents may wish to seek custody of their grandchild, either with or without consent of the child’s parents. Some parents may be deemed unfit or incapable of providing for their child, and thus the grandparents will step in. With the traditional family dynamic changing over the years, allowing grandparents to have a larger role, Illinois law does recognize that grandparents have a limited right to see their grandchildren. This right is greatly affected by the specific situation and dynamics of the family. Usually though, a grandparent can only request custody if the parents have relinquished the child or the child’s parents have been deemed unfit.

Pursuant to Section 602.8(C)(1) of the Illinois Marriage and Dissolution of Marriage Act, grandparents of a child who is at least one year old at the time, can file a petition requesting parenting time only if they can prove at least one of the following conditions is met:

  • The child’s parent is deceased or has been missing for at least 90 days
  • A parent of the child is legally incompetent to care for the child
  • A parent of the child has been incarcerated in jail or prison for at least 90 days
  • The child’s parents are divorced or legally separated, or there is a pending divorce or custody case; and at least one parent does not object to the grandparents having parenting time; or
  • The child was born out of wedlock and the parents do not live together.


The grandparents have the burden of proof to show that at least one of these conditions is met, and it is in the best interests of the child to have parenting time with the grandparents. In cases where grandparents have met their burden of proof, a court will consider several factors to determine whether visitation is appropriate and if so, how much. These factors include:

  • The child’s preference if the child is old enough and mature enough to state a reasoned opinion
  • The grandparents mental and physical health
  • The length and quality of the prior grandparent-grandchild relationship
  • The grandparent’s reasons for filing the petition
  • The parent’s reasons for denying the visitation
  • The amount of visitation requested and any impact on the child
  • Whether the child lived with the grandparent for at least 6 months – with or without the parent
  • Whether the grandparent acted as a primary caretaker of the child for at least 6 months
  • Whether the grandparent previously had regular visitation with the child for at least 12 months; and
  • Any factor demonstrating that a loss of the grandparent relationship would harm the child’s mental, physical, or emotional health.

Grandparents have a unique place in a child’s life. Too often, hard feelings, death, or divorce can cause grandparents of one parent to get cut out of the picture. As a grandparent, you have legal options if you want to still be a part of your grandchild’s life. If you have additional questions about grandparent visitation or custody rights, contact the Law Offices of Allison and Mosby-Scott.