Do you only get one motion to dismiss?

[mybrood]

What is the name of your state (only U.S. law)? Illinois
My children's father and I were married and got divorced.

In 2008 I remarried.

Biodad relinquished his parental rights in July 2009.

Biodad was ordered to pay back child support in October 2009 for the year prior to his relinquishment of rights that he did not pay child support. March 2010 Child support enforcement found biodad and contacted his work about paying back child support.

April 2010 biodad's parents petitioned for grandparent visitation with children and try to stop adoption of children by stepdad.

September 2010 adoption of children is finalized.

The grandparents have not attempted to see the children since April 2009, a full year before they filed for visitation. (I believe they filed for visitation as revenge over the back child support.)

I filed a motion to dismiss their petition for visitation because biodad had relinquished his parental rights. It was denied because his rights were not terminated by DCFS but he willingly gave them up. (I don't personally see the difference but whatever.)

Under the Illinois Grandparent's Visitation Law, biodad's parents are using the section that states that
(B) the child's mother and father are divorced or
have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving custody or visitation of the child (other than any adoption proceeding of an unrelated child) and at least one parent does not object to the grandparent, great‑grandparent, or sibling having visitation with the child. The visitation of the grandparent, great‑grandparent, or sibling must not diminish the visitation of the parent who is not related to the grandparent, great‑grandparent, or sibling seeking visitation;

My question is this can I file another motion to dismiss based on the fact that since the adoption the children's legal parents are my husband and myself and we are not divorced and neither one of us give permission for the children to go? Or do you only get one motion to dismiss?

 

[LdiJ]

What is the name of your state (only U.S. law)? Illinois
My children's father and I were married and got divorced.

In 2008 I remarried.

Biodad relinquished his parental rights in July 2009.

Biodad was ordered to pay back child support in October 2009 for the year prior to his relinquishment of rights that he did not pay child support. March 2010 Child support enforcement found biodad and contacted his work about paying back child support.

April 2010 biodad's parents petitioned for grandparent visitation with children and try to stop adoption of children by stepdad.

September 2010 adoption of children is finalized.

The grandparents have not attempted to see the children since April 2009, a full year before they filed for visitation. (I believe they filed for visitation as revenge over the back child support.)

I filed a motion to dismiss their petition for visitation because biodad had relinquished his parental rights. It was denied because his rights were not terminated by DCFS but he willingly gave them up. (I don't personally see the difference but whatever.)

Under the Illinois Grandparent's Visitation Law, biodad's parents are using the section that states that
(B) the child's mother and father are divorced or
have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving custody or visitation of the child (other than any adoption proceeding of an unrelated child) and at least one parent does not object to the grandparent, great‑grandparent, or sibling having visitation with the child. The visitation of the grandparent, great‑grandparent, or sibling must not diminish the visitation of the parent who is not related to the grandparent, great‑grandparent, or sibling seeking visitation;

My question is this can I file another motion to dismiss based on the fact that since the adoption the children's legal parents are my husband and myself and we are not divorced and neither one of us give permission for the children to go? Or do you only get one motion to dismiss?

No, you cannot do that. Standing to sue for grandparent visitation survives a stepparent or other family member adoption. That is why you did not prevail on the previous motion for dismissal.

However, standing to sue does not mean that the grandparents will automatically receive visitation...particularly in IL However it does mean that if you truly feel that its not in your children's best interest to have visitation with their paternal, biological grandparents, that you need an attorney who has experience in GPV cases.

 

[mybrood]

My problem is that I can not find anyone who has ANY experience with grandparent visitation. I hired one lawyer who cost me a bunch of money and he didn't know anything about the grandparent's visitation act that went into effect in 2007. He filed the first motion for dismissal. If you all know of any lawyers experienced with grandparent's visitation in the southern Illinois counties of Hardin, Pope, Gallatin, Saline, or Williamson I would appreciate it. I have called a bunch of attorneys, all of whom are willing to take the case, but none of whom have any experience in this kind of case. Almost all of them have said that grandparents have no rights. The lawyer for the grandparents is out of Chicago which is on the other side of the state, 342 miles to the north. There have only been 4 cases of grandparent visitation in the state since 2007.

I don't see how they can file for visitation if they do not meet the requirements set forth in the law. They can not say that the children's biodad is their parent for this case because he signed a paper that stated that he was giving up all legal rights to the children including decisions about visitation. Also the adoption papers state that my husband and I are the parents of the children as thought they were born to us in lawful wedlock. The adoption law in Illlinois also says that if a parent surrenders their rights then they surrender all their legal rights to the children including visitation.

How can the grandparents say that the biodad is the children's parent? The judge also said that I had until November 18 to give my answer, what does that mean?

 

[LdiJ]

My problem is that I can not find anyone who has ANY experience with grandparent visitation. I hired one lawyer who cost me a bunch of money and he didn't know anything about the grandparent's visitation act that went into effect in 2007. He filed the first motion for dismissal. If you all know of any lawyers experienced with grandparent's visitation in the southern Illinois counties of Hardin, Pope, Gallatin, Saline, or Williamson I would appreciate it. I have called a bunch of attorneys, all of whom are willing to take the case, but none of whom have any experience in this kind of case. Almost all of them have said that grandparents have no rights. The lawyer for the grandparents is out of Chicago which is on the other side of the state, 342 miles to the north. There have only been 4 cases of grandparent visitation in the state since 2007.

I don't see how they can file for visitation if they do not meet the requirements set forth in the law. They can not say that the children's biodad is their parent for this case because he signed a paper that stated that he was giving up all legal rights to the children including decisions about visitation. Also the adoption papers state that my husband and I are the parents of the children as thought they were born to us in lawful wedlock. The adoption law in Illlinois also says that if a parent surrenders their rights then they surrender all their legal rights to the children including visitation.

How can the grandparents say that the biodad is the children's parent? The judge also said that I had until November 18 to give my answer, what does that mean?

The reason why there have been so few cases is do to the fact that the IL Supreme Court struck down the original laws as facially unconstitutional, and the new laws have much more rigid standards.

Go read this article:

New Amendments to the Illinois Grandparent Visitation Statute

The attorney who got the IL Supreme Court to strike down the original laws is the one who wrote this. He is out of Chicago so he won't be of any help to you. He is also VERY expensive. This article does clarify that standing to sue for visitation survives a stepparent adoption. I do however agree with the fact that that is contradictory to the clause that says that one of the parents must agree.

I have been trying to find the name of the attorney who represented the mother in Mehring vs Mehring, but I am having no luck. I know that case was a Southern Illinois case. If you contact a local law school I bet they could tell you the name of her attorney. That case was seriously famous in Southern IL 10-12 years ago.

 

[mybrood]

Thank you for the help. Mr Goldberg is the grandparent's attorney. He says that for the purpose of grandparent visitation it doesn't matter that the biodad gave up his rights and that the adoption doesn't make my husband and I the children's parents for this case. I don't understand how that can be. I have found one case that supports that if both parents say the grandparents can't see the children then they don't get to see them. I also found one case where the court held up the part of the grandparent's visitation law that says if granted visitation it can not take time away from the parent that is not related to the grandparent.

I kind of feel like I'm going up against a giant. Another thing is that they only put me on the petition and did not include my husband because they do not see him as the father of the children. Is that legal? Shouldn't they have to include him?

 

[LdiJ]

Thank you for the help. Mr Goldberg is the grandparent's attorney. He says that for the purpose of grandparent visitation it doesn't matter that the biodad gave up his rights and that the adoption doesn't make my husband and I the children's parents for this case. I don't understand how that can be. I have found one case that supports that if both parents say the grandparents can't see the children then they don't get to see them. I also found one case where the court held up the part of the grandparent's visitation law that says if granted visitation it can not take time away from the parent that is not related to the grandparent.

I kind of feel like I'm going up against a giant. Another thing is that they only put me on the petition and did not include my husband because they do not see him as the father of the children. Is that legal? Shouldn't they have to include him?

The bolded certainly doesn't surprise me. He got himself all famous getting the gpv laws overturned, and now he is representing a grandparent...go figure. I actually never had much respect for the man myself. He represented a good friend of mine in a gpv case and seriously botched it. That was several years prior to the IL Supreme Court case. He kept sending totally unprepared underlings to hearings instead of showing up himself.

Anyway, if the case is taking place in Southern Illinois why is he representing the GPs? Do they have really serious money?

Its really interesting that they didn't put your husband on the petition...and if by any chance you lose the case, I will tell you about several cases where attorneys/gps did the same thing and how THAT worked out for them.

 

[mybrood]

Grandmother has a lot of money. Grandfather is just along for the ride. They have been divorced for over 20 years. Grandfather doesn't even show up to court. Mr Goldberg is working with an attorney from around here so he doesn't show up either. He has called me to see if I'd make a deal with him. He said I have no chance of winning against him.

 

[wrongsometimes]

Grandmother has a lot of money. Grandfather is just along for the ride. They have been divorced for over 20 years. Grandfather doesn't even show up to court. Mr Goldberg is working with an attorney from around here so he doesn't show up either. He has called me to see if I'd make a deal with him. He said I have no chance of winning against him.

You may be able to find an attny with experience. You can go to google scholar or Redirecting (reg. required) and search out the court opinions in respect to the statue ... then, from the case #, you should be able to find an attny to question.

 

[LdiJ]

I found the attorney that represented the parent in the Mehring Case. It was Lance Freezeland from Effingham, IL. He was good. If he is too far away to do you any good he may be able to recommend someone who can.

Do NOT let Mr. Goldberg intimidate you.

 

[mybrood]

The last thing in the Judge's order states, "The respondent, ME, is granted to Friday, November 18, 2010, to file her Answer to the Petition."

What does that mean? Do I need to go back to the original petition and give my answers to each of the things that the grandparents claim?

I am trying to find an attorney to help me but am not having much luck finding anyone with experience in this kind of thing. The 18th is approaching fast and I don't want to just let it pass without submitting anything. Any help is appreciated.

 

[TinkerBelleLuvr]

When is the last time the grandparents saw the child/children?

Before dad terminated rights, what type of relationship did they have? Card/ send presents/ see the children?

 

[mybrood]

The Grandfather last saw the children in April 2008. The Grandmother last saw the children on April 2009. They are divorced. Grandmother did not see my oldest until she was 2 years old. Grandfather saw children on holidays and birthday parties. Grandmother saw children a little more often. Biodad would take the kids to Grandmother while I was at work. I was a manager of a resturant and worked late hours on the weekends. Biodad had weekends off so I worked Friday night through Sunday nights. I generally went in at 4 pm on Friday and worked til midnight. Saturdays I worked from 9am til 2am so I slept most of the day on Sundays and went in at 4pm till 11pm. I worked this schedule so I could be home the rest of the week while biodad was working. I found out after the fact that biodad was taking the kids to Grandmother's house so he could go out on the weekends. Grandmother never told me she was keeping them. The kids would say that they saw her but I thought she took em out to eat or something. This went on for about 4 months. When I found out what was going on I was mad and told both biodad and Grandmother I didn't appreciate them lying to me. I changed my hours and left biodad. After the divorce, biodad moved out of the county so the children rode the bus to Grandmother's house on his visitation days. Biodad rarely showed up for these days and they stayed with Grandmother. This went on for about 2 months. When I found out he wasn't getting the kids I had the visitation agreement changed that he had to personally be at pick up on visitation days. He wouldn't show up so none of his family saw the kids. Of course they blamed me and said that I made it too difficult for him to see the children. I even agreed to meet him halfway. I went every week to the meeting place, a gas station, and I got receipts every time I got there. He showed up one time between November 2008 and July 2009. My daughter was denied visitation beginning August 2008. Biodad and Grandmother said she was too disrespectful to come to their homes. I think the rest I put in a post already. Grandmother did buy gifts for Christmas and birthdays but they had to stay at her house. She claims to have purchased my children's winter coats every year but she didn't.

 

[LdiJ]

The last thing in the Judge's order states, "The respondent, ME, is granted to Friday, November 18, 2010, to file her Answer to the Petition."

What does that mean? Do I need to go back to the original petition and give my answers to each of the things that the grandparents claim?

I am trying to find an attorney to help me but am not having much luck finding anyone with experience in this kind of thing. The 18th is approaching fast and I don't want to just let it pass without submitting anything. Any help is appreciated.

Yes, that means that you need to answer each of the points in their original filing.

If you cannot find an attorney to represent you then use their original filing as a template to construct your response. Use the same headings and title it "response to" whatever they titled theirs. IE, "Response to petition for grandparent visitation".

Number your responses to match their numbers. If one of the items is something that you agree with, IE that you are the mother of the children, then your response can simply be that you agree.

If you have additional things to add then continue the numbering and put your things at the end of the response.

However, if there is any way that you can find an attorney, you should do so.

 

[mybrood]

The petition says that Grandmother is the paternal grandmother of the minor children. Would it be correct for me to say that I deny this because the adoption of the children makes stepdad the father of the children and since Grandmother is not the mother of the children's legal father she cannot be the paternal grandmother?

 

[mistoffolees]

The petition says that Grandmother is the paternal grandmother of the minor children. Would it be correct for me to say that I deny this because the adoption of the children makes stepdad the father of the children and since Grandmother is not the mother of the children's legal father she cannot be the paternal grandmother?

If Dad gave up his parental rights and someone else adopted the child, then you could deny that statement on those grounds.