First, as to grandparent custodial rights in Illinois:
In Flynn v. Henkel
, 227 Ill.2d 176 (2007), the Illinois Supreme Court ruled on some of these amendments, providing tremendous insight into the its current opinion on grandparent visitation. Effective January 1, 2007, the Illinois Legislature passed the following series of amendments concerning grandparent visitation:
- The Grandparent Visitation Act no longer applies to children less than one year old. 750 ILCS 5/607(a-3).
- One new amendment contains a specific venue provision such that “[a] petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides.” 750 ILCS 5/607(a-3).
- The statute now allows a grandparent to petition for visitation during a “pending dissolution proceeding or any other proceeding that involves custody or visitation issues.” 750 ILCS 5/607(a-3).
- A grandparent will be able to petition for visitation if a parent “has been missing for at least 3 months.” 750 ILCS 5/607(a-5)(1)(A-5).
- The statute allows for a grandparent to petition for visitation if the parent has been “incarcerated in jail or prison during the 3 month period preceding the filing of the petition.” 750 ILCS 5/607(a-5)(1)(A-15).
- If a child is adopted by a relative or a stepparent, a grandparent still has standing to petition for visitation after the adoption, which is in stark contrast to the old law which forbade a grandparent to petition for visitation after the child had been adopted. 750 ILCS 5/607(a-5)(1)(B).
In Flynn, the Illinois Supreme Court interpreted the new laws to mean that a grandparent seeking court-ordered visitation must prove that the child’s mental, emotional, or physical health will be harmed if visitation is denied, and the fact that a child simply will be cut off from one side of the family if visitation is stopped is not enough to prove harm to the child. For now, Flynn is the controlling opinion for grandparents seeking visitation in Illinois, although the constitutionality of these new provisions has not yet been challenged. (Practitioners will recall that in 2002, in Wickham v. Byrne, 199 Ill.2d 309 (Ill.
2002), the Illinois Supreme Court held the prior grandparent visitation statute unconstitutional on its face because it infringed on the natural parents’ fundamental right “to make decisions concerning the care, custody, and control of their children without unwarranted statue intrusion.”)
Second, as to the natural father's custodial rights:
What he's going to have to do is petition the court now for custody upon the birth of the child and to be informed as to when the birth takes place.
As to custody - custody and visitation are based upon the "best interests of the child" as determined by the judge.
Certainly has valid arguments that he should be the primary custodial parent
given her history and family.
There are two types of custody - physical and legal.
Physical custody is the right and responsibility to provide a child's primary residence. Legal custody encompasses all parental rights
with the exception of physical custody, including the right and responsibility to make legal decisions about important matters such as education, health care, religion, general welfare, and the right to access information like school and medical records.
The court shall determine the allocation of parental responsibilities
, including physical custody and visitation, and decision-making responsibilities, in accordance with the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child. In determining the best interests of the child for purposes of custody, the court shall consider all relevant factors, including the following:
1. The wishes of the child's parents as to custody;
2. The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the custody and visitation schedule;
3. The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;
4. The child's adjustment to his or her home, school, and community;
5. The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;
6. The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;
7. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;
8. The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
9. Whether one of the parties has been a perpetrator of child abuse
or neglect, which shall be supported by credible evidence;
10. Whether one of the parties has been a perpetrator of spouse abuse, which factor shall be supported by credible evidence; and
11. The ability of each party to place the needs of the child ahead of his or her own needs.
Legal Custody Laws. The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child. The court may award decision-making responsibilities (legal custody) solely to one parent or jointly between the two parents. In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors listed above, the following:
1. Credible evidence of the ability of the parties to cooperate and to make decisions jointly;
2. Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;
3. Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;
4. Whether one of the parties has been a perpetrator of child abuse or neglect that is supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the representative of the child;
5. Whether one of the parties has been a perpetrator of spouse abuse that is supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then joint custody
over the objection of the other party shall not be in the best interests of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.
The court shall not consider conduct of a party that does not affect that party's relationship to the child, and shall not presume that any person is better able to serve the best interests of the child because of that person's sex. If a party is absent or leaves home because of spouse abuse by the other party, such absence or leaving shall not be a factor in determining the best interests of the child.
So what I tell parents to do when they are thinking about a custodial battle - sit down and make a list of the all the positives with the child to live with them AND a list of all the negatives for the child to live with the other parent.
He is able to take that list and "refresh" his memory while on the witness stand when he testifies in court.
If he's well prepared and presents himself well - it would appear that the court would grant him primary physical custody of the child.
Please ask for "Law Pro" if you have any further future questions!
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