Capitol Chronicle

By Jim Covington

Director of Legislative Affairs

Illinois has once again amended the visitation statute effective Jan. 1, 2007. Public Act 94-1026 amends §607 of the IMDMA to create standing for grandparents, great-grandparents, and siblings for visitation with a minor child who is at least one-year-old if there is an unreasonable denial of visitation by a parent and one of the following six situations occurs. (1) The child's other parent is deceased or has been missing for at least three months. The parent must be reported to law enforcement as missing. (2) A parent of the child is incompetent as a matter of law. (3) A parent has been incarcerated in jail or prison during the three-month period preceding the filing of the petition. (4) At least one parent does not object to the visitation by a nonparent and there is a pending dissolution proceeding of a parent, a pending custody or visitation proceeding involving the child, or the child's mother and father are divorced or have been legally separated from each other. (5) The child is born out of wedlock, the parents are not living together, and the petitioner is a maternal grandparent, great-grandparent, or sibling of the child. (6) The child is born out of wedlock, the parents are not living together, the petitioner is a paternal grandparent, great-grandparent, or sibling, and paternity has been established by court of competent jurisdiction.

An adoption-case order terminating parental rights to or for the adoption of a child automatically terminates any visitation rights previously granted under §607. But if the adoptive parents are related to the child, any person who was related to the child as grandparent, great-grandparent, or sibling before the adoption has standing to file for visitation.

Keep four other things in mind while reading §607. (1) "Sibling" is defined as a brother, sister, stepbrother, or stepsister of the minor child. (2) If there is no pending litigation, a petition for visitation filed by a nonparent must be filed in the county in which the child resides. (3) Nothing in §607 applies to a child subject to a pending petition under the Juvenile Court Act or a pending petition to adopt an unrelated child. (4) It is presumed that a fit parent's decisions about a nonparent's visitation are not harmful to the child, and the burden is on the nonparent to prove that these decisions are harmful to the child.

This Act also does three other things. (1) In the list of criteria on whether a court should grant a nonparent visitation, it adds a new criterion for the court to consider: whether the nonparent was a full-time caretaker of the child for a period of not less than six consecutive months. (2) In the modification of a visitation order, it clarifies that a child's parent may always petition to modify visitation upon changed circumstances when necessary to promote the child's best interest. (3) Section 607 has three different provisions affecting the right of a nonparent to modify a visitation order. Two of these three provisions are repealed to clarify that a court may not modify an existing visitation order to a nonparent unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior visitation order or that were unknown to the court at the time of the entry of the order, that a change has occurred in the circumstances of the child or the child's custodian and that modification is necessary to protect the mental, physical, or emotional health of the child.