The process of receiving child custody for third-party non-parents can be confusing. Here’s everything you need to know about third-party custody in Illinois.

People who are not a child’s parents can obtain child custody in situations where the biological parents cannot adequately care for them.

What is Third Party Child Custody in Illinois?

While many child custody disputes occur between the parents of a child, some circumstances exist where a third party non-parent, such as a grandparent, aunt, or uncle, may seek custody. The child’s parent(s) inability to care for the child may prompt family members to seek custody of the child. Family members may seek child custody if the child’s parents demonstrate they are unfit to parent. Sometimes, third-party non-parents only want visitation time with the child, but the child’s parents disagree. Such a situation may occur when a couple does divorce and one of the child’s parents prevents relatives from seeing the child. For example, a mother may attempt to keep her child away from the father and his family.

Guidelines Regarding Third Child Custody in Illinois

Under Illinois law, the court prefers for a child to remain in tone or both of their parent’s custody. However, the court may consider a parent unfit to care for the child, in which case, the court may regard awarding third-party non-parent custody to favor the child’s best interests. If the court removes the child from their parent’s custody, the parents voluntarily relinquish their parental rights to the child. If the parent physically or psychologically abuses or neglects the child, or if the child’s parents are deceased or incapacitated, the court may view third-party non-parent custody as the best choice for the child.

Related: Noncustodial Parental Rights in Illinois

What About Third-Party Visitation Rules in Illinois?

When child custody lies with a fit parent, third-party non-parents may not successfully seek custody of the child. However, third-party non-parents can seek visitation with the child, even if the child’s parent or parents deny their visitation requests. The court gives preference to the parents’ wishes concerning child visitation. However, circumstances might exist to warrant a third party non-parent seeking visitation rights from the court. Third-party non-parents with a deep and meaningful relationship with the child and a history of visitation have a better chance of obtaining visitation privileges from the court.

In Illinois, the legal mechanisms granting third party (i.e. non-parent) visitation are a legal gray area.

In Illinois, you can petition the court for visitation, but you must meet the following criteria:

  • One or both of the children’s parents are in jail for over three months
  • The court declares one or both of the parents unfit
  • The parents agree to the visitation
  • One or both of the parents are deceased or have been absent for over three months

Can Grandparents Obtain Child Custody Rights?

Compared to visitation, the circumstances to allow grandparents to take custody of their grandchildren are even more specific. In Illinois, legal custody is “parental responsibility” and likely defaults to the parents.

Grandparents may only receive custody if:

  • The parents willingly give up the child due to extreme financial hardship or other circumstances
  • The court declares the parents unfit because of criminal activity or substance abuse

The court takes a third-party individual’s claims that a parent is unfit for custody very seriously. The court will always require proof and weigh it against the child’s best interest.

Sometimes grandparents can sue for custody of children if their parents are unfit. Illinois takes an individual’s efforts to prove that a parent is unfit seriously. To show a parent is unfit in Illinois, you must a parent must meet one or more of these criteria:

  • Abandonment
  • Habitual substance abuse problems
  • Physical or emotional abuse
  • Mental illness or instability
  • Placing the children in an unsafe living environment
  • Being incarcerated
  • Uninterested in the children’s welfare
  • Neglect

The third party must back up their allegations with verifiable evidence including police reports, criminal records, medical records, photographs, or other documentation. These cases can be hard to prove, so you should consult an experienced family attorney first.

Can Grandparents Obtain Visitation Rights in Illinois?

As long as the parents are fit and have child custody in Illinois, it is entirely at their discretion to decide whether a grandparent can visit their child. The law allows non-parents to petition the court for visitation rights, but the burden of proof is high. In that case, a third-party non-parent must prove the parent’s decision to deny visits from a non-parent physically, emotionally, or mentally harms the children. The court tends to favor their claims if a grandparent proves they have had frequent and healthy visits in the past that the child’s parents suddenly cut off. Since the court favors parents in child-related decisions, even this claim is not a guarantee.

In all but the most extreme cases, parents have full discretion over how to raise their children. If a parent decides they do not want their child to have a relationship with their grandparents, that is legally within their right unless it would cause physical, emotional, or mental damage to the child. Further, a grandparent must prove their lack of relationship with the child will damage their well-being in court. Note that gut feelings and hunches will not be enough to sway a court.

Related: How to Modify Child Support in Illinois

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If you or a loved one would like to know more about third party custody in Illinois, get your free consultation with one of our family law attorneys today!