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Legal Information: Illinois

Custody

Updated: 
June 26, 2020

Can a parent who committed domestic violence or sexual abuse of a child get parental responsibilities or parenting time?

Domestic violence:
Possibly. When considering whether or not to award parenting time (visitation) and significant decision-making responsibilities (custody), a judge will consider any physical violence or threat of physical violence and any acts of “abuse” by the parent against the child or a member of the child’s household.1Abuse, for these purposes, is defined as physical abuse, harassment, intimidation of a dependent, interference with personal liberty or willful deprivation.2 However, there are also many other factors that a judge will consider when making a decision. Therefore, it is possible that a parent who has committed violence or abuse will get parenting time (visitation) and significant decision-making responsibilities.

Sexual abuse:
When considering whether or not to award parenting time (visitation) and significant decision-making responsibilities (custody), the judge will consider if a parent is a sex offender. The judge will also consider the exact nature of the offense and what, if any, treatment the parent has completed.3 However, again, this is just one factor among many that will be considered. Note: If a parent was convicted of any offense involving an illegal sex act committed against a minor, s/he cannot get parenting time while incarcerated or while on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release for a felony offense until the parent complies with whatever terms and conditions the judge may order. The judge will take into account the exact nature of the offense and what, if any, treatment in which the parent successfully participated.4

1 750 ILCS 5/602.7(c)(11),(14); 750 ILCS 5/602.5(c)(12),(13)
2 750 ILCS 5/600(a); 750 ILCS 60/103(1)
3 750 ILCS 5/602.7(c)(15); 750 ILCS 5/602.5(c)(14)
4 750 ILCS 5/603.10(e)

If I am the child’s relative, can I get visitation?

The following relatives may file for visitation with a child if certain circumstances are met:

  • grandparents;
  • great-grandparents;
  • stepparents; and
  • siblings, including half-siblings and stepsiblings.1

Visitation may mean:

  • in-person time with the child;
  • electronic communication, like phone calls, emails, online chats, or video calls with the child; or
  • some combination of both kinds of contact.2

You may file for visitation by filing a petition in the county where the child lives. You may also file for visitation as part of a current divorce case or other case involving parental rights and responsibilities for the child, such as a custody case.3

You may only file for visitation under this law if a parent has unreasonably denied visitation, and the denial has caused the child unnecessary mental, physical, or emotional harm.4 You can see more information at Under what circumstances can a relative file for visitation?

1 750 ILCS 5/602.9(c)(1)
2 750 ILCS 5/602.9(a)(1), (a)(4)
3 750 ILCS 5/602.9(b)(1)
4 750 ILCS 5/602.9(b)(3)

Under what circumstances can a relative file for visitation?

Generally, a judge will presume that a fit parent’s decisions about who sees the child are reasonable and not harmful to the child.1 However, if you are one of the relatives who can request visitation under the law, you may file for visitation if you can prove:

  1. the child is at least one year old;
  2. the child’s parent has unreasonably denied visitation;
  3. denying visitation with the child has caused the child unnecessary mental, physical, or emotional harm;2 and
  4. one of the following factors is true:
  • The child’s other parent had died or has been missing for at least 90 days. The child’s parent may be considered missing if:
    • no one can determine the parent’s location; and
    • the parent has been reported missing to a law enforcement agency.
  • One of the child’s parents is “incompetent as a matter of law.”
  • One of the child’s parents has been in jail or prison for more than 90 days before you file for visitation.
  • The child’s parents are divorced, and at least one parent agrees to let you have visitation with the child.
  • *The child’s parents are legally separated, and at least one parent agrees to let you have visitation with the child.
  • *One of the parents is part of a current divorce case or other court case involving parental responsibilities or visitation, and at least one parent agrees to let you have visitation with the child. This does not include the following cases:
    • the adoption of an unrelated child;
    • a case involving a child who has run away, refuses to return home, and requires court intervention for his/her own safety; or
    • a court case for a civil or criminal order of protection because of domestic violence.
  • *If the child’s parents are not married and are not living together, then:
    • If you are the child’s grandparent or great-grandparent, the parent to whom you are related must have legally established his/her relationship to the child. For example, if you are related to the child’s father, the father must have legally established his paternity rights.
    • If you are the child’s step-parent, your spouse must have legally established his/her relationship to the child. For example, if you are married to the child’s father, the father must have legally established his paternity rights.3

Note: For the situations with asterisks (*), the visitation with the child cannot take away from the parenting time of the parent to whom you are not related.

1 750 ILCS 5/602.9(b)(4)
2 750 ILCS 5/602.9(b)(3)
3 750 ILCS 5/602.9(c)(1)(A)-(E)

What factors will a judge consider when deciding if a relative should get visitation?

Once the judge determines that you are one of the relatives who can request visitation under the law and that the circumstances are appropriate for you to file, the judge will decide if it’s in the child’s best interest for you to have visitation. The judge will consider the following factors:

  • what the child wants, after considering how mature the child is and the child’s ability to tell the judge his/her reasons and independent wishes about visitation;
  • the child’s mental and physical health;
  • your mental and physical health;
  • the length and quality of the existing relationship between you and the child;
  • whether you are filing the petition for visitation in good faith;
  • whether the parent who is refusing visitation is doing so in good faith;
  • how much visitation time you want with the child, and the possible negative impact visitation would have on the child’s usual activities;
  • any other fact that shows how the loss of the relationship between you and the child is likely to cause unnecessary harm to the child’s mental, physical, or emotional health; and
  • whether visitation can be organized in a way that minimizes the child’s witnessing conflicts between you and the parents.1

A judge should also consider the following factors:

  • whether the child has lived with you for at least six months in a row with or without the parent;
  • whether the child has had frequent and regular contact or visits with you for at least 12 months in a row; and
  • whether you were a primary caretaker for the child for at least six months in a row within the 24 months immediately before you filed for visitation.2

1 750 ILCS 5/602.9(b)(5)
2 750 ILCS 5/602.9(c)(2)

What circumstances would automatically disqualify a relative from getting visitation?

Even if you meet all of the circumstances and requirements that would normally allow a relative to file for visitation, you cannot file for visitation under the following circumstances:

  • There is a petition pending to make the child a ward of the state; place the child under an order of protection; or terminate parental rights because the child has been abused, neglected, or dependent under Section 2-13 of the Juvenile Court Act of 1987.
  • An unrelated person is petitioning to adopt the child under the Adoption Act, or an unrelated person has already legally adopted the child.
  • The child has been voluntarily surrendered by one or both parents, unless the child was surrendered to the Department of Children and Family Services or a foster care facility.
  • The child’s parents have given him/her up under the Abandoned Newborn Infant Protection Act.1

In addition, the following criminal convictions will affect a relative’s ability to get visitation:

  • If you have ever been convicted of committing an illegal sex act against a victim who is under 18 years old, you cannot get visitation while you are in jail or prison, or while you are on parole, probation, conditional discharge, periodic imprisonment, or mandatory supervised release. You may also be denied visitation after you are released from the above conditions based on the factors a judge must consider when deciding visitation.2
  • If you have ever been convicted of first-degree murder for killing the child’s parent, grandparent, great-grandparent, or sibling, a judge cannot grant you visitation. 3

1 750 ILCS 5/602.9(b)(2)
2 750 ILCS 5/602.9(e)
3 750 ILCS 5/602.9(f)