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Issues raised for custodial grandparents in divorce

On Behalf of | Aug 16, 2022 | Divorce |

Many households today are comprised of multiple generations. It’s common for seniors to be taking care of their adult children and their grandchildren or their grandchildren alone. In fact, there are over 100,000 grandparents in Illinois taking care of their grandchildren.

Situations in which grandparents assume guardianship

Grandparents often step in when their adult children are unable to take care of their own young children. Some of the reasons grandparents take care of their grandchildren include:

  • Substance abuse
  • Mental illness
  • Domestic violence
  • Neglect
  • Disability of the children

Legal custody of the children may not have been sought by the grandparents. The children’s parents may still have legal custody and have authorized the grandparents to get healthcare for the children and oversee any school-related permissions.

What happens when grandparents divorce?

Should grandparents divorce, a crisis can occur for all three generations. If the children’s parents are not able to take care of the children on their own, a child custody determination will need to be made.

The parents of the children have rights to determine how their children will be cared for. They may want to regain full custody of their children. If they are able to take care of their children, there should not be any impact on the divorce proceedings. On the other hand, the divorcing grandparents, individually or collectively, may contest the ability of the parents to take care of their children. If that’s the case the family will need to probate any custody arrangements separate from the divorce.

It will first need to be determined if the biological parents can maintain custody. The Illinois Department of Children and Family Services (DCFS) may need to be involved in the custody decision if there are concerns about abuse or neglect. They will need to determine if the biological parents can retain custody of their children, if either of the grandparents can gain custody or if an alternative placement is necessary.

Custody and child protection issues for parents and grandparents

There are multiple levels of custody determination to be made in a case of grandparents gaining custody in the midst of a divorce. First, it must be determined whether or not the biological parents can retain custody. Then, it will be assessed if the grandparents are able to take care of their grandchildren.

The probate court will determine:

  • Physical custody
  • Legal custody
  • Visitation allowances for the parents and grandparents

Any divorce agreement will take into consideration the decisions by the court regarding child protection. The Department of Children and Family Services (DCSF) will most likely be involved if the biological parents are determined to be unable to care for their children by the agency or the courts.