Does Family of Non-Custodial Father Has Visitation Rights During His Military Service Overseas ?
In In re Marriage of Sullivan, 342 Ill. App. 3d 560, 795 N.E.2d 392, 277 Ill. Dec. 25 (2003), the Second District Appellate Court held that, despite the unconstitutionality of the grandparent visitation statute, the noncustodial father had the right to petition the court to modify his visitation rights so that his family could visit his son while he served in the military overseas. In re Marriage of Sullivan, 342 Ill. App. 3d at 564-65.
The court held that the common law prior to the enactment of the unconstitutional statute would have allowed the father's parents to visit his child in his absence because of the "special circumstances." In re Marriage of Sullivan, 342 Ill. App. 3d at 565.
The court stated that because the father, as opposed to a grandparent, had petitioned the court for grandparent visitation, the case did not require a judge to decide the best interests of a child between a fit parent and a nonparent but, instead, involved the trial court's weighing of the wishes of two fit parents to determine the child's best interests. In re Marriage of Sullivan, 342 Ill. App. 3d at 565.