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Grandparents’ Visitation Rights

Chester A. Lizak

About 30 years ago I vowed that I would not handle any more divorce cases. I was representing a husband who was contesting his wife’s request for a divorce. Prior to trial, I had spoken to his mother who confirmed all the good things that her son said she would testify to. However, when she became a witness at trial, her testimony was 180 degrees different from what she told me when I was preparing her as a witness. She more or less concluded her testimony with, “My son is a drunk and a bum. He stays out all night.”

After the trial, I asked her to explain why the turnabout in her testimony. She told me that when I was preparing her as a witness she did not want to contradict her son in his presence. However, when she got on the stand, she knew that she had to tell the truth. “I knew that my daughter‑in‑ law was going to get the children, and I didn’t want to jeopardize my visitation rights with my grandchildren.” I agreed with her although I wished that she would have told me this prior to the trial.

Grandmother had correctly analyzed the situation.

Over the last 15 years, the Illinois legislature has passed and amended a statute guaranteeing grandparents’ visitation rights under certain circumstances when it is in the best interests and welfare of the child. The statute gave them the right to petition the court for reasonable visitation privileges under circumstances where one of the parents was deceased, or the parents were not cohabiting, or other similar circumstances. However, the Illinois Supreme Court has held that the grandparent visitation statute is unconstitutional. The statute violates a fundamental right protected under the due process clause of the Fourteenth Amendment i.e. the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.

Obviously, the grandmother in the 30‑year old case instinctively knew that it is important to maintain a good relationship with the spouse of your of your child.

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