In the past, extended families lived together or in close proximity, with various family members participating in the raising of children. As we have become more mobile and our birthrate lower, the extended family living together has become more rare. Longer lifespans and better healthcare have also encouraged older Americans to be more active and less tied to their homes and grandchildren. The nuclear family and the single-parent family has become more the rule. Nevertheless, grandparents have continued to maintain a stake in their grandchildren’s lives and have sometimes used the courts to obtain visitation and even custody of those grandchildren.

In 2000, the U.S. Supreme Court decided Troxel v. Granville, 530 U.S. 57 (2000), finding that, as applied, the Washington statute giving third parties the right to seek court ordered visitation despite opposition from a fit parent violated substantive due process by allowing governmental interference with a parent’s constitutional right to raise her children as she saw fit. As applied to the facts of that case, the state statute did not pass the strict scrutiny test.

The same year, the Illinois Supreme Court rendered a similar ruling in Lulay v. Lulay, 193 Ill.2d 455 (2000). In Lulay the parents were divorced, but both opposed visitation by the paternal grandmother. The Illinois statute was determined, as applied to the facts of that case, to create an unconstitutional infringement on the parents’ right to control the upbringing of their children.

Then, in 2002, the Illinois Supreme Court, in Wickham v. Byrne, 199 Ill.2d 309 (2002), went beyond Lulay and found the sections authorizing grandparent petitions for visitation and custody to be facially unconstitutional because of their failure to defer to the decision-making of “fit” parents.

Following Wickham, the legislature amended the statutes to qualify the right of grandparents, or other persons, to pursue a petition for visitation or custody, by building in a presumption of fitness of a parent to deny visitation. It also added a requirement for certain petitioners that the child not be in the custody of a parent when a custody petition was filed. P.A. 93-1026 (2004).

The challenge, therefore, in representing grandparents is to establish standing, under the current statute without running afoul of the constitutional standards. Typically, since Troxel and Wickham, grandparent custody cases arise either when one of the child’s biological parents is deceased, or when a grandparent who was already caring for the child on a full-time, though informal, basis seeks to establish legal rights over the child.

Because of parents’ superior rights over the custody and control of their children, grandparents and other third parties seeking custody of a child must first demonstrate that they have standing to bring an action. Two provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) may apply: Section 601(b)(2) allows a person other than a parent to seek custody of a child only if the child “is not in the physical custody of one of his parents;” Section 601(b)(4) allows a grandparent to file a petition for custody if their child or step-child is the deceased parent of the child in question and one or more of the following facts existed at the time of the parent’s death: A. The surviving parent had been absent from the home for more than a month with whereabouts unknown; B. The surviving parent was in State or Federal custody; C. The surviving parent had been convicted of or received supervision for certain criminal acts toward the deceased parent or child or violated on Order of Protection for the deceased parent or child.

Determining standing under sub-section (4) is fairly straightforward and the conditions listed serve as an inference that the surviving parent is not fit to control the upbringing of his/her children. Such an inference is sufficient to get past the presumption of fitness and thus pass the strict scrutiny test for constitutionality. Such an inference does not occur under subsection (2). Any petition filed under Subsection (2), must allege facts which create an inference that the parent or parents who are respondents are not fit to control the upbringing of their children, thus triggering the state interest and passing the strict scrutiny test.

As set forth in the statute, when grandparents or other third parties seek custody under subsection (2), the children must not be in the physical custody of a parent. That determination is based on a three-pronged “voluntarily relinquishment” test, that requires the court to consider: (1) who cared for the child before the custody petition was filed, (2) how the nonparent gained physical possession, and (3) the nature and duration of the possession. (MCC.) This analysis is highly fact-dependent.

Courts are clear that physical custody is not determined by who has physical possession of the child at the moment the petition is filed. This is to avoid a “race to the courthouse” or abduction situation, and to ensure that the grandparent did not obtain possession based on “happenstance.” The parents or surviving parent must have relinquished physical custody for an indefinite period, not merely temporarily, to satisfy the statutory requirement.

In the event a custodial parent lives with their parent (the grandparent), and then passes away, courts have held this living situation is insufficient to establish standing for grandparent custody. Thus, in the case of In re: Custody of Peterson, 112 Ill.2d 48 (1986) the court held that upon the death of the custodial parent who was being cared for, along with her child, by her parents, the minor child “must be considered to have been in the physical custody of her father.”

Contrast that scenario with one in which both parents, unmarried, decide that they are unable to properly care for the child, so they place the child with the mother’s mother. Several years later, they decide they are “ready,” but the grandparent does not wish to give up her de facto custody. In this scenario, the grandparent is in a much different legal position, because both parents voluntarily placed the child with her.

Other factors to be considered in establishing a grandparent’s standing are whether the now-objecting parent previously acquiesced to the grandparent’s care for the child and the level of involvement of the parent in the child’s life. Biological parents need not relinquish legal custody in order for a grandparent to have standing, as the analysis hinges on physical custody. In re A.W.J., 316 Ill.App.3d 91 (2000) A parent who is incarcerated is incapable of exercising custody of the child and therefore the child is not in his/her custody. However, a short-term incarceration may be insufficient as the parent is entitled to make short-term care arrangements for the children. See In re: A.W.J., Id. and cases cited therein.

In establishing standing under the IMDMA, both statutory provisions and constitutional requirements must be met. Under House Bill 1452, however—currently under consideration in the state legislature— the entirety of Section 601 is repealed and the sections replacing it appear to make no provision whatever under which grandparents can seek custody of their grandchildren under the IMDMA.

The advisability of such a policy is up to the legislature, but many grandparents will lose an avenue to help their grandchildren despite the loss or unavailability of one or both parents. ■