Motion to Dismiss

[mybrood]

What is the name of your state (only U.S. law)? Illinois
I asked this question in the Grandparent's rights section but didn't get many responses so I am asking it here. Sorry for the repost but I need more than 1 or 2 people responding and would like to have a response by a senior.

I am being sued for grandparent's visitation by the biodad's parents. Biodad relinquished his parental rights and step dad adopted children.

If neither parent is dead, it is a requirement under the Illinois law that the grandparents have the permission of one of the parents to seek visitation. The grandparents are saying that they have permission of one of the parent's because they say they have the permission of the biodad.

My attorney filed a motion to dismiss under the grounds that the adoption of the children made these grandparents no longer grandparents. However there is a place in the Illinois law that says that grandparents rigts survive step parent adoption. (I have since let my lawyer go since he doesn't seem to know anything)

My question is this: Can I file a motion to dismiss because they do not meet the requirements set forth in the law to even file the petition for visitation because they do not have permission of a legal parent?

 

[majomom1]

What is the name of your state (only U.S. law)? Illinois
I asked this question in the Grandparent's rights section but didn't get many responses so I am asking it here. Sorry for the repost but I need more than 1 or 2 people responding and would like to have a response by a senior.

I am being sued for grandparent's visitation by the biodad's parents. Biodad relinquished his parental rights and step dad adopted children.

If neither parent is dead, it is a requirement under the Illinois law that the grandparents have the permission of one of the parents to seek visitation. The grandparents are saying that they have permission of one of the parent's because they say they have the permission of the biodad.

My attorney filed a motion to dismiss under the grounds that the adoption of the children made these grandparents no longer grandparents. However there is a place in the Illinois law that says that grandparents rigts survive step parent adoption. (I have since let my lawyer go since he doesn't seem to know anything)

My question is this: Can I file a motion to dismiss because they do not meet the requirements set forth in the law to even file the petition for visitation because they do not have permission of a legal parent?

Um... excuse me? Several seniors responded to your other post and you even had an attorney offer his services to you... which rarely happens on this board.

What happened with that, because he would be the best advice you could ever hope to get?

 

[stealth2]

What is the name of your state (only U.S. law)? Illinois
I asked this question in the Grandparent's rights section but didn't get many responses so I am asking it here. Sorry for the repost but I need more than 1 or 2 people responding and would like to have a response by a senior.

FOUR different senior posters replied to you with suggestions/information. AND a lawyer offered to speak with you. Did you actually bother to call him?

 

[mybrood]

Still Waiting On An Answer

Yeah I did call and speak with him, however I cannot afford the $5000 that he needs as a retainer. I would love to hire him but he said that if it goes to trial, which I'm sure it will, that it will cost more like $15,000 and being that I've already spent $10,000 on the previous attorney, I cannot afford anymore. I have drained my savings and have no hope of getting that kind of money right now. If I had the $5000 needed to hire Mr. Freezeland than I wouldn't be here. I have spent the last month trying to come up with the funds needed but have not had any luck. And I'm sure you are all aware that if you cannot afford to pay the attorney you want to hire then they do not answer any of your questions or give you free advice (it wouldn't be a very profitable business if they worked this way).

My original question in the other tread was NOT answered. I was only told why the original motion to dismiss was not granted (Not very helpful). That is why I am here asking again.

I want to know if I can file a motion to dismiss or not. I'll ask it once more: Can I file another motion to dismiss?

 

[majomom1]

Yeah I did call and speak with him, however I cannot afford the $5000 that he needs as a retainer. I would love to hire him but he said that if it goes to trial, which I'm sure it will, that it will cost more like $15,000 and being that I've already spent $10,000 on the previous attorney, I cannot afford anymore. I have drained my savings and have no hope of getting that kind of money right now. If I had the $5000 needed to hire Mr. Freezeland than I wouldn't be here. I have spent the last month trying to come up with the funds needed but have not had any luck. And I'm sure you are all aware that if you cannot afford to pay the attorney you want to hire then they do not answer any of your questions or give you free advice (it wouldn't be a very profitable business if they worked this way).

My original question in the other tread was NOT answered. I was only told why the original motion to dismiss was not granted (Not very helpful). That is why I am here asking again.

I want to know if I can file a motion to dismiss or not. I'll ask it once more: Can I file another motion to dismiss?

You can always file a motion, but if you file it for the same reason as the first one, then the Judge might get a little testy.

You would need request the dismissal, on different grounds... and I am not sure that you have that.

 

[mybrood]

Thank You

Thank you.

The first motion was to dismiss because the adoption would negate any rights the grandparents have to the children because they would no longer be "related" to them. However, visitation survives step parent adoption (which I understand).

The reason I think it should be dismissed is because there are very specific reasons given that grandparents have to meet in order to petition for visitation and they do not meet them. They say that they have a "parent's" permission because they have biodad's permission, but he is no longer a legal parent and cannot give his permission for anything. They do not recognize the adoptive father as the children's father. They say that biodad is biodad and can still give his permission for visitation.

 

[gr8rn]

Thank you.

The first motion was to dismiss because the adoption would negate any rights the grandparents have to the children because they would no longer be "related" to them. However, visitation survives step parent adoption (which I understand).

The reason I think it should be dismissed is because there are very specific reasons given that grandparents have to meet in order to petition for visitation and they do not meet them. They say that they have a "parent's" permission because they have biodad's permission, but he is no longer a legal parent and cannot give his permission for anything. They do not recognize the adoptive father as the children's father. They say that biodad is biodad and can still give his permission for visitation.

I'm sorry, but I don't see the difference between the two reasons. They are worded a different way but they both pertain to the grandparents no longer being eligible for visitation because the father is no longer the father. It looks like the same arguement to me.
And I understand the issues with money you are dealing with, but do you realize that here, you hardly ever get as much help as you have been given, to have one of the seniors actually hunt down an attorney for you (remember in your other post, you were asking for help finding an attorney) They found you an excellent attorney and you turned him down?

You have to decide if this is a gamble you want to take, but this is definitely not a do it yourself project.

 

[Isis1]

Thank you.

The first motion was to dismiss because the adoption would negate any rights the grandparents have to the children because they would no longer be "related" to them. However, visitation survives step parent adoption (which I understand).

The reason I think it should be dismissed is because there are very specific reasons given that grandparents have to meet in order to petition for visitation and they do not meet them. They say that they have a "parent's" permission because they have biodad's permission, but he is no longer a legal parent and cannot give his permission for anything. They do not recognize the adoptive father as the children's father. They say that biodad is biodad and can still give his permission for visitation.

If that's all you have, then your best chance would be to go with that and cross your fingers. Worse case scenario, the case continues on anyway.

I'd still recommend still attempting to receive monies for that attorney in the meantime.

 

[ecmst12]

The fact that there was a stepparent adoption is what gives them the ability to file. Now it goes to trial and they have to prove that they had a relationship with the child and that he would be harmed by severing contact. They most likely can't do that, but they can try.

 

[Perky]

If neither parent is dead, it is a requirement under the Illinois law that the grandparents have the permission of one of the parents to seek visitation. The grandparents are saying that they have permission of one of the parent's because they say they have the permission of the biodad.

It's silly of the grandparents to claim that, but you have misread the statute. That requirement is only mentioned in one subsection, and it's not the applicable one.

My attorney filed a motion to dismiss under the grounds that the adoption of the children made these grandparents no longer grandparents. However there is a place in the Illinois law that says that grandparents rigts survive step parent adoption. (I have since let my lawyer go since he doesn't seem to know anything)

It is that section that allows the grandparents to request visitation without the permission of one of the parents.

My question is this: Can I file a motion to dismiss because they do not meet the requirements set forth in the law to even file the petition for visitation because they do not have permission of a legal parent?

It's pointless to file the motion.

 

[CJane]

It's silly of the grandparents to claim that, but you have misread the statute. That requirement is only mentioned in one subsection, and it's not the applicable one.

It is that section that allows the grandparents to request visitation without the permission of one of the parents.


It's pointless to file the motion.

And, you probably shouldn't have fired your attorney for "not knowing much" when your only other option was to go it alone. Because you don't know ANYTHING AT ALL about what arguments need to be made, how to present evidence in court, etc.

And don't the grandparents have THE authority on GP rights working for them? And you're going to do this pro se?

 

[mybrood]

The options that grandparents have under the Illinois Grandparent's Act is
A-One parent is dead.
B-One parent is incarcerated or missing for 3 months.
C-One parent has been found incompetent by law.
D-Parent's are legally separated or getting a divorce and 1 of the parent's does not object to the visitation.
E-The child was born out of wedlock.

They are claiming that they can file because they fit into D but I don't see how.

 

[Perky]

The options that grandparents have under the Illinois Grandparent's Act is
A-One parent is dead.
B-One parent is incarcerated or missing for 3 months.
C-One parent has been found incompetent by law.
D-Parent's are legally separated or getting a divorce and 1 of the parent's does not object to the visitation.
E-The child was born out of wedlock.

They are claiming that they can file because they fit into D but I don't see how.

They fit into this one:

(750 ILCS 5/607) (from Ch. 40, par. 607) (a-5) (2)
If the person or persons who adopted the child are related to the child, as defined by Section 1 of the Adoption Act, any person who was related to the child as grandparent, great‑grandparent, or sibling prior to the adoption shall have standing to bring an action pursuant to this Section requesting visitation with the child.

 

[ecmst12]

If you can't even read the statute correctly, you really have no business going into court without an attorney.

 

[LdiJ]

The bottom line is that you cannot get their case dismissed because they do have standing.

They may not have the necessary criteria to win a case, but they do have standing. Therefore the case is going to get heard, on its merits.

Although you would be much better off having that attorney on board, because he is a "big gun" that can handle their "big gun", there is some small benefit in not having an attorney. Their big gun tends to try to financially destroy the other party by racking up legal fees with status conferences and unnecessary hearings. Its a common tactic on his part.

The hope is that you will cave and settle, because of the unrelenting legal fees. If you do not have an attorney, and stand firm, then his clients will be the only ones racking up legal fees.

However that also means that you have to represent yourself, and so far you are demonstrating that you don't understand enough of the very basics, to do so.

You are confusing "standing" (the ability to sue) with winning (having the necessary elements/facts/evidence) to win. They absolutely do have standing. What they don't have are the elements to win. Therefore the case WILL be heard and it will be up to you to demonstrate that they do not have the elements to win.

The only way the case won't get heard is if they decide to cut their own losses on the legal fees and dismiss it or stop pursuing it themselves. If they are truly wealthy they likely won't do that. If they are comfortable but not truly wealthy, they might start feeling the pinch and decide to cut their losses.