Grandparent’s Custody Rights in Illinois

The issue of grandparent’s visitation rights has been something of a moving target over the last few decades, and laws differ between states. Here’s what you need to know if you are a grandparent needing help to get visitation with your grandchild.

Do grandparents have visitation rights in Illinois? While the state of Illinois has recognized that extended family members often play a large role in a child’s life, their rights to see their grandchild/grandchildren is far more complicated. The courts almost always favor leaving children in the care of their biological parents. However, in cases where a parent is incapable or doesn’t want to take care of their children, a grandparent can petition for custody.

Overview of Grandparent Visitation Laws

Visitation is when a person who is not the parent of a child spends time with that child. Visitation used to include time spent by a parent with a child, but that is now legally called parenting time. In Illinois, there are no federal laws governing visitation rights for grandparents. However, depending on family dynamics, Illinois grandparents do have a limited legal right to visit their grandchildren, especially if the parents are divorced.

In general, it is up to the parents of a child to decide who can spend time with that child. But sometimes a non-parent can get a court order to force the parents to let them spend time with a child if the child is at least one year old.

Only the following people can get a court order for visitation with a child:

  • Grandparent
  • Great-grandparent
  • Brother or Sister
  • Step-parent

Granting Visitation

To obtain parenting time rights in Illinois, grandparents must meet the following requirements:

  • Show that they have been unreasonably denied parenting time by a parent of the grandchild
  • Show that one of the following statements is true:
    • A parent is incompetent.
    • A parent has been dead or missing for at least three months.
    • A parent has been incarcerated for at least three months.
    • The child’s parents are divorced or legally separated, or there is a pending dissolution or custody proceeding, and at least one parent has no objection.
    • The child is born out of wedlock and the parents are not living together.

The court will then review:

  • The grandchild’s preference
  • The grandparents’ intentions in seeking parenting time
  • Whether the denial of parenting time has been in good faith
  • The closeness of the relationship between the child and the grandparents
  • Whether the time requested might have a damaging effect on the child’s regular activities
  • Whether the child lived with the grandparent or the grandparent was the primary caretaker of the child for at least six consecutive months
  • The frequency of contact for at least one year
  • The mental and physical health of the child
  • The physical and mental well-being of the grandparents

Gaining Custody for Grandparents

It is possible for a grandparent to obtain custody of a grandchild. The first way is through petitioning the court for custody of the grandchildren. Both parents of the child must voluntarily relinquish their parental rights to the child unless there is another issue like abuse. Parents may give up the rights to their children for many deeply personal reasons such as addiction or mental health issues. Other times, very young parents relinquish their parental rights so that a grandparent or grandparents can adopt the child.

The second way grandparents can be awarded custody of their grandchildren if the biological parents have been found to be abusive or neglectful to the child. The Department of Children and Family Services oversees children who are taken from abusive homes. There is also an option for grandparents to become the legal guardian of a child called “Private Subsidized Guardianship.” This permanent measure is usually reserved for situations in which there is no hope of reuniting the child with his or her biological parents.

Adoption and Grandparents’ Rights

In most situations, adoption severs ties between a child and biological family members, including grandparents. Any visitation orders entered before a child’s adoption will automatically terminate when an adoption is finalized.

Even in the case of a stepparent adoption, grandparent visitation isn’t a given; Grandparents can bring a visitation petition in the case of a stepparent adoption, but the grandparent must still demonstrate that the lack of visitation would harm the child. In many cases, it’s difficult for a grandparent to meet that burden.

Getting Help

Grandparents have a unique place in a child’s life, and being refused visitation can bring anguish on both the grandparents and more importantly, the child. If you have been denied the right to see your grandchild, you should speak with the experienced attorneys at Masters Law Group. Based in downtown Chicago, we represent grandparents who are facing the stressful and highly emotional facing matters of child visitation and related issues.

Contact us here today and we will protect your rights as a grandparent and provide you with the representation you need to achieve the best results.

 

5 Prenup Myths You Need to Know

A prenuptial agreement (commonly referred to as a premarital agreement) is a contract people enter into prior to marriage that establishes the essential property and financial rights of each spouse in the unfortunate event of a divorce. While the agreement can protect you down the line if you and your new spouse part ways, there are many misconceptions that should be addressed before rejecting the notion all together.

Wedding venue is booked, dress is fitted, rings are bought and the flowers are ordered. At this stage most couples assume “I Do” is all that’s left. However, many Americans are now adding another step to their wedding plans; a prenuptial agreement. A prenuptial agreement is defined as, “an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage” and failing to make a prenuptial agreement will result in the courts having power over your estate. So why the hesitation for so many others tying the knot?

Read on for five common myths and misconceptions about prenups and learn how an attorney can help you craft a prenuptial agreement that will provide peace of mind on your big day.

Myth #1: Prenups are only necessary if one spouse is wealthy.

Prenuptial agreements are extremely beneficial to those with ample assets, but they are also highly valuable for the “average-income” individuals, too. For example, if you married without a prenup in place, the courts may not be aware of personal debt, pets, the sentimental value of inheritance items or the fact you had cash set aside for your children. With a prenup, you can customize and define what will remains yours in the instance of a separation in the future.

Myth #2: My Spouse wants a prenup because he/she doesn’t trust me.

Arguably, the biggest reason for not getting a prenup is the misconception it comes down to trust. Or a lack of it. While this can be the case in some relationships, in far more cases these agreements have nothing to do with trust. Instead one, or both, parties want to be prepared for whatever comes their way. While almost all marriages start off with the best of intentions, around 50% of them end in divorce, regardless of the level of trust present on the day of the wedding. A prenuptial agreement will help ensure trust since both parties will need to reveal their assets, debts, and beliefs about how things should work financially in a marriage. In addition, should the marriage fail, this type of agreement really helps to streamline the divorce process for both parties.

Myth #3: Couples who truly love one another don’t need a prenup.

Worried that a prenuptial agreement will pit you and your future spouse against each other or be an omen for divorce? The opposite is actually true. In fact, 86% of mental health experts polled by relationship site YourTango said that prenups have “no predictable impact” on marriage. Completing a prenuptial agreement requires the ability to discuss financial matters and reach compromises; both skills that are a sign of a strong future marriage. So yes, creating a prenup can strengthen your relationship and prepare you for future financial discussions later down the road.

Myth #4: Prenups aren’t enforceable.

This is a myth that has been getting more and more popular in recent years. Although there are times when prenuptial agreements are not enforced in court, the majority of them are. Illinois, like many states, has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA is a set of guidelines that govern how courts decide whether a prenuptial agreement is enforceable. All prenuptial agreements must be in writing. Both spouses must also sign the agreement for it to be enforceable. In rare cases where prenups are not enforced, it is usually because one spouse was coerced or under duress when signing, or when proper legal procedures are requirements were not met when the agreement was created. If you have a well-written prenuptial agreement that is done properly by an experienced attorney, you have an excellent chance at the courts enforcing it every time.

Myth #5: You shouldn’t hire an attorney to get a prenup.

It’s not a good idea to enter into a prenuptial agreement solo. Every state has separate rules for prenuptial agreements. If you aren’t familiar with your state law, or if you’re not comfortable interpreting the rules, you should hire an attorney. A prenup attorney responsible for drafting a prenuptial agreement will outline a clearly defined assets protection strategy that can reduce the potential for financial disputes during the divorce process.

To Conclude

Couples considering marriage today are three times more likely to enter into a prenuptial agreement than spouses were ten years ago. No longer just a protection for the wealthy, prenuptial agreements are used by couples from all income brackets to decide how to divide their property if they divorce.

A well-crafted premarital agreement can address spouses’ concerns about financial issues or obligations during their marriage, and it can protect certain assets in the case of divorce. At Masters Law Group, we understand that establishing a prenuptial agreement enhances the strength of your relationship and provides the foundation for a strong marriage. If you live in Illinois and need to have your prenup written up, please contact us to go over all your options today.

Parenting Plan Not Working? Seek an Adjustment.

A parenting plan outlines how you and the other parent will continue to care and provide for your children after you separate. Parenting plan modifications usually occur when there is a change in circumstances, such as one parent moving away, a child custody change, or a change in the visitation schedule. 

If you have a parenting plan in Illinois, it includes a schedule which shows when your child is with each parent. Your schedule should include the daily living schedule, holidays and vacation time. When a parenting plan is finalized by agreement or a court decision, formal modification of that parenting plan requires court action. As a result, courts have developed a system for classifying child support and parenting plan modifications in order to establish a threshold for evaluation of any changes.

Here are some important things to know about parenting plans:

  • Each parent must file a parenting plan within 120 days of asking the court for parental responsibilities;
  • If the parents agree on parental responsibilities, including parenting time, they can file one parenting plan (signed by both parents) within the 120 days. If the parents don’t agree, they must each file their own parenting plans;
  • If neither parent files a parenting plan, the court will hold a hearing to determine the child’s best interests; and
  • The court will look at the parenting plans when it decides who gets parental responsibilities.

Grounds for Modification

A parenting plan should provide for a child’s changing needs, in a way to minimize the need for future modifications, but they are not always perfect for those involved.  While the court, attorneys and parents try to create a Parenting Plan that provides a schedule for the parents to follow until the child turns 18, life sometimes creates obstacles for parents that make the parenting plan difficult or even impossible to follow. 

Concerns over pandemic safety can make that time even more complex. Parents are facing unforeseen issues this year such as:

  • The child having to travel to another part of the state, or another state altogether, to visit their parent
  • One parent living in a COVID-19 hotspot
  • One parent had COVID-19 or is currently experiencing symptoms
  • One parent is not being careful about COVID-19 and could be putting the child in danger
  • One parent does not feel the virus is a true health threat
  • One parent is immunocompromised and in isolation

Despite the many challenges the pandemic has brought, your parenting schedule may be modified ONLY by the court. The court will only grant a modification if they find a “Substantial Change in Circumstance” or that that it is in the best interests of the children, known as “Best Interests.” The law states:

Sec. 610.5. Modification.
(a) Unless by stipulation of the parties or except as provided in Section 603.10 of this Act, no motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development. Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child. 

750 ILCS 5/610.5

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Modifying Your Parenting Plan

To make amendments to your parenting plan, follow these steps:

    1. If an agreement cannot be met, obtain the current parental responsibilities order so the judge can see the ongoing arrangements.
    2. Fill out your parental responsibility modification forms.
    3. File your forms with the court. Your family law attorney can assist with completing and filing your forms.
    4. Tell the other party about your petition and court date. You will need to complete:
      • Motion to Modify Parental Responsibilities: This is critical and needs to be filled out carefully. Be sure to include as many details as possible. If you forget to ask for something in your motion, the court cannot give it to you. Remember to attach a copy of the Parental Responsibilities Order you are trying to change to your motion. If the parental responsibilities order is part of another order such as a Judgment for Dissolution of Marriage or Parentage order, also attach a copy of that order to ensure it is complete.
      • Notice of Motion
      • Affidavit (Use only if it has been less than two years since the order was signed. This must state why you want the parental responsibilities changed so soon.)
      • Child support forms: If child support is changing, you also need to complete additional forms. Child support will change if the parent receiving support is changing from one parent to the other.
    5. Go to the Hearing. The judge will make a decision and enter an order which will explain the decision.

Hiring Legal Help

You have the right to represent yourself in court. However, you are expected to follow the court’s rules and procedures. Most people who work in the courthouse cannot give you legal advice; meaning they cannot help you decide what to do, evaluate your possibility of success, or present your argument to the judge. Hiring an attorney highly experienced in family law will help you understand your legal options and create a plan for what comes next.

Masters Law Group LLC focuses on helping clients assert their rights to further the best interests of their children. We help clients put aside their grief and educate them about their options in child allocation of parental responsibilities.

We represent individuals in both their initial quest to set a parenting time schedule, as well as parents looking to modify a previously determined schedule. If you require a review of your current parenting time schedule or parenting plan, contact us here today to schedule a consultation.

Hague Convention: 6 Defenses to a Petition for the Return of a Child.

The Hague Convention is a treaty that many countries, including the United States, have joined. Its purpose is to protect children from the harmful effects of international abduction by a parent. Under the Convention, a court may deny return of an abducted child if one of the following six defenses apply.

When a parent is subject to an application either in the State Court or the Federal Court for return of a child who is alleged to be illegally taken from a foreign country and brought to the United States, or wrongfully retained in the United States beyond the agreed upon time frame of temporary absence, there are certain defenses that can be raised by the non-petitioning parent in order to prevent the return.

History of Hague

The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.

This multilateral treaty was developed by the Hague Conference on Private International Law (HCCH) and concluded on October 25, 1980, entering into force on December 1, 1983.

These participating countries are also included in a large treaty that governs the way different legal systems work together. There were two specific goals in mind at the time of The Hague Services Convention’s formation:

  • Create a means to ensure that judicial and extrajudicial documents to be served abroad can be brought to the notice of the addressee in sufficient time.
  • Improve the organization of mutual judicial assistance.

According to the Convention, the removal or retention of a child is “wrongful” whenever it breaches the rights of custody attributed to a person or any other body and if at the time of remove or retention those rights were actually exercised. Even if a parent already has legal custody of a child, the Convention is needed because U.S. court orders may not be recognized in other countries and sovereign nations cannot interfere with each other’s legal systems, judiciaries, or law enforcement.

Under the Hague Abduction Convention and ICARA, when a child has been wrongfully removed from the child’s home nation-state or “habitual residence,” the court must order the child to be returned to the habitual residence, unless the party removing the child can establish at least one of six narrow affirmative defenses.

Six Defenses

There are a few defenses to a claim of wrongful removal or retention under the Hague Convention, which include:

Defense 1: That the petitioner (parent seeking the return of the child) was not “actually exercising custody rights at the time of the removal or retention” under Article 13.

Defense 2: That the petitioner “had consented to or acquiesced in the removal or retention” under Article 13.

Defense 3: That more than one year passed from the time of the wrongful removal or retention until the date the petitioner commenced a judicial or administrative proceeding for the return of the child, under Article 12.

Defense 4: That the child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the petitioner and that it is appropriate to heed that objection, under Article 13.

Defense 5: That “there is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b), and

Defense 6: That return of the child would subject the child to violation of basic human rights and fundamental freedoms, under Article 20.

If your child has been wrongfully removed to a country overseas, you should immediately contact your local family law attorney that is experienced in international custody disputes for help.

Relocating Your Child

Whether due to job requirements (like working in the military) or simply moving back to be with family, many separated or divorced US parents relocate abroad every year. You must realize it will often be a criminal offense for you to take the child away without the other parent’s permission. Illinois Courts require that a parent looking to permanently relocate a child from the State of Illinois have a written agreement and/or Court Order allowing the move.  There are a variety of factors the Court will consider in adjudicating whether the move is within your child’s best interest.

As previously mentioned, under the Hague Convention you will “wrongfully remove” a child if you take the child away from his or her habitual residence. Therefore, the other parent will normally be able to block your removal of the child from that country and if you take the child to the United States a U.S. court will normally compel you to return the child forthwith.

It is imperative you make any International Custody Agreements & Parenting Time schedules before you relocate your child/children.

In deciding whether to authorize a child’s relocation to a foreign country, U.S. courts will try to determine the best interests of the child, considering the same factors they normally consider in domestic move-away cases (these factors depend on the laws of state that has jurisdiction to hear the case). In addition, with international move-away cases, most state courts will also consider several additional factors, including (as per DivorceNet):

  • The cultural conditions and practices in the foreign country
  • Any potential visitation difficulties for the parent that gets left behind
  • Jurisdictional issues that may make the enforceability of the domestic custody and visitation orders problematic (meaning the extent to which the foreign country would enforce the left-behind parent’s visitation or rights to access the child), and
  • Whether or not the proposed foreign country is a signatory to the Hague convention (however, the fact that the proposed country is not a signatory does not automatically mean the request to relocate will be denied).

If you want to move your child out of the United States or your child’s other parent does, you should definitely contact an experienced custody attorney for advice on how to protect your parental rights.

Getting the Help You Need

Left behind parents face enormous obstacles in seeking judicial intervention in the United States to compel return of their children. Proving claims in international child abduction cases under the Hague Abduction Convention requires analysis and careful development of all evidence and testimony that may support or defeat defenses to claims of wrongful abduction or retention.

The attorneys at Masters Law Group have extensive experience in cases involving international child custody disputes in both courts located in the State of Illinois and the United States federal court system. We have extensive knowledge and experience with The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) that was enacted into law through the International Child Abduction Remedies Act (“ICARA”) which provides that a parent whose child has been wrongfully removed from or retained in the United States may petition for the child’s return to his or her country of habitual residence.

Contact us here today to schedule a consultation.