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Women and the LawThe newsletter of the ISBA’s Standing Committee on Women and the Law

November 2007, vol. 13, no. 1

Grandparents’ visitation rights are still in limbo in Illinois

In this ever-changing society, more and more grandparents are called upon to perform the duties and responsibilities of parents. Grandparents provide emotional as well as financial support in helping to raise their grandchildren. Whether it is mere babysitting their grandchildren, or outright providing a home and shelter for them, grandparents have a unique bond with their grandchildren that only the parents and the law can hinder or dissolve. Courts recognize that parents have ultimate and generally, unrivaled authority in making decisions concerning the well-being of their children. The 14th Amendments Due Process Clause guarantees protection of a parent’s fundamental liberty interest to make decisions concerning the care, custody and control of their children.1 With a stalwart deck of cards stacked against them, more and more grandparents have been asking the question, “What about us”? Well, unfortunately in Illinois, there just is not a clear cut and absolute answer to that question just yet.

Prior to the enactment of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which took effect in 1977, the Divorce Act was the controlling statute as it pertained to visitation of minor children.2 That statute gave discretion to the trial court to decide what was reasonable and proper and in the best interest of the children when determining visitation rights of parents and grandparents. As a result, Illinois established its own common law regarding visitation rights of grandparents which was solemnized in Chodzco v. Chodzco.3 In Chodzco, the Illinois Supreme Court held that the superior right of a natural parent to make decisions concerning the care, custody and control of their children will not be undermined absent a showing of “special circumstances.” Chodzco essentially left it up to the trial court to determine what it deemed “special circumstances.” There were no set boundaries or specific guidelines in which to adhere, and thus no way to gauge exactly what the prevailing school of thought was in deciding what set of facts would be prominent enough to be called ‘special.’ Consequently, there were some instances where grandparents were not granted visitation rights and others where they were.4

Although the U.S. Supreme Court had already established precedent regarding the superiority of parental rights, it eventually rendered a decision in Troxel v. Granville, which accorded some much-needed guidance to lower courts in deciding grandparent visitation cases.5 Troxel sets the reigning benchmark for reaffirming that a fit parents’ decision regarding the care custody and management of their children will not be undermined by a third party, including the courts. In Troxel, the paternal grandparents petitioned the Washington trial court for increased visitation time with their grandchild over the objection of the mother.6 The Washington statute pertaining to third party visitation of children allowed any person to petition for visitation rights at any time and authorized the trial courts to grant those rights if it served the best interest of the child.7 The trial court granted the petition and the decision was appealed by the mother to the Washington State Court of Appeals where it was reversed. The grandparents then appealed to the Washington State Supreme Court where the reversal was affirmed due to the breadth of the language in the statute and the infringement on the parent’s due process rights.8 The case was then appealed to the U.S. Supreme Court which granted certiorari and held that the Washington statute was indeed overly broad due to the fact that any person, related or not, could petition for visitation and it also permitted the trial courts to have unfettered discretion to determine, in lieu of the parents, what was in the best interest of the child.9The court held that this was a violation of the Due Process Clause of the Fourteenth Amendment which guarantees a liberty interest of parents in making decisions concerning the well being, custody and control of their children.10

750 ILCS 5/607 of the IMDMA, is the Illinois statute pertaining to parent and third party visitation of minor children. The statute, as it pertains to grandparents, states in part:

… (a-3) Grandparents, great-grandparents, and siblings of a minor child, who is one year old or older, have standing to bring an action in circuit court by petition…(a-5)(1) Except as otherwise provided…any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent and at least one of the following conditions exists…. (emphasis added).

The statute goes on to cite the various familial compositions that must be present before filing a petition which include situations where the parents are divorced or legally separated, where one of the parents is deceased, incompetent or incarcerated and where the child is born out of wedlock and the parents are not living together.11 Although the supremacy of parental rights in making childrearing decisions is well grounded in law, there is also a competing, inveterate recognition that state interference with these rights can most certainly be justified when the health, safety, and welfare of the child is jeopardized.12 Thus, the statute also states that there is a rebuttable presumption that a fit parent’s actions regarding the prescribed third party visitation are not harmful to the child’s mental, physical or emotional health and places the burden on the party filing the petition to prove that the denial of visitation is harmful to the child’s mental, physical or emotional health.13 The statute further delineates several particulars for the court to consider in making its best interest determination including the length and quality of the prior relationship between the child and the grandparents. With such prudent language and forethought, is this enough to pass constitutional muster?

Twice now, has the Illinois statute that pertains to grandparent visitation been held to be unconstitutional by the Illinois Supreme Court either as applied to the facts of a particular case or on its face.14 Although the Supreme Court was again confronted with the issue of the constitutionality of the visitation statute in Mulay et al. v. Mulay, it declined to address the issue because there were other nonconstitutional grounds in which the case could be disposed.15 The court ruled that if there are other nonconstitutional issues that could be addressed in deciding whether to dismiss a case, then those issues should be entertained before resorting to a dismissal based on constitutional grounds.16The statute in its present form has yet to be rendered unconstitutional in any context. It appears though that the legislature has recognized a possible glitch in the language of the statute which may call into question its constitutionality and is currently attempting to cure the questionable defect.

At the time of this article, there was an Amendment to House Bill 3010 pending in the legislature. This amendment proposes to delete the word “unreasonable” from the language of the statute as it pertains to a denial of visitation by a parent. Interestingly enough, the word ‘reasonable’ is mentioned further in the text of the statute as it relates to the access of the child granted to the prescribed third party after visitation is awarded, although this use of the word ‘reasonable’ is not subject to deletion by the amendment. In any event, enforcement of the amendment has been stayed to allow the Supreme Court to first decide the cases currently pending on its docket challenging the constitutionality of the statute in its current form. Be that as it may, if precedent is the legal barometer of the future outcome of cases, this amendment may be a wise move by the legislature. Allowing prescribed third parties to petition for visitation of minor children if there has been an ‘unreasonable’ denial of visitation by a parent no doubt gives wide latitude to the trial court to determine what it deems is or is not reasonable. This presumably is the kind of unfettered discretion accorded to the courts that is exactly the type that Troxel and Wickham purported to contain. As was stated in Wickham, “parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons.”17Moreover, deleting the word ‘unreasonable’ allows courts to more expeditiously arrive at the heart of the statute which is rebutting a fit parent’s decision to determine the well being of their child which undoubtedly encompasses an element of reasonableness.

It is well settled that statutes carry a strong presumption of constitutionality, and will not be held to be facially invalid unless there is no set of circumstances that exists under which the statute would be valid.18 Because neither Troxel nor Wickham indicate that the presumption that a fit parent acts in the best interest of their child is irrefutable, it follows that there is ultimately some discretion to the courts to make a best interest determination based on factors it deems vital. For example, the Supreme Court of Ohio has upheld the constitutionality of its grandparent visitation statute which contains language similar to the Illinois statute. The Ohio non-parental visitation statutes allow grandparents or other relatives of minor children reasonable companionship or visitation rights if the court determines that the granting of the companionship is in the best interest of the child.19 The parents’ wishes as well as certain other factors are considered, just as in Illinois, which the court utilizes in making its determination of best interest. The Ohio Supreme Court held that its statute was narrowly tailored to serve a compelling interest in protecting the child’s best interest and held its statute to be constitutional.20

One of the cases currently pending before the Illinois Supreme Court concerning grandparent visitation is Flynn v. Henkel.21 In Flynn, the Second District Appellate Court affirmed the trial courts decision to grant grandparent visitation over the objection of the mother.22 The court ruled that the denial of visitation by the mother was retaliatory in nature because of the fathers’ request for paternity.23 As such, the court deemed the visitation denial unreasonable.24 Turning to the heart of the statute, the court affirmed the trial court’s finding that although there was no direct emotional harm done to the child by denying visitation rights to the grandparent, the grandchild would be harmed by never knowing a grandparent who loved him and who did not undermine the child’s relationship with his mother.25 Is this reasoning in alignment with the intent of the statute?

There are a plethora of cases holding that the liberty interest of parents in raising their children is a protected fundamental constitutional right. The specific holdings in Wickham and Troxel, that courts will not substitute its reasoning and judgment for that of the parents in determining the best interests of their children, coupled with the long standing recognition that state interference with parental rights is only justified to protect the welfare of the child, the reasoning in Flynn may not be of the type intended to be elicited from the statute.26 Allowing courts to make subjective determinations as to the intent of the parents when determining whether visitation is reasonable, in conjunction with portraying an inchoate and indefinite illustration of emotional harm to the child, Flynn may not embrace the type of analysis contemplated by the statute to sufficiently comply with the mandates of the law. Indeed, the court in Troxel acknowledged that the constitutionality of any standard awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with care.27 Thus, careful and distinct analysis must be displayed when interpreting and applying the statute.

The proclivity of the Supreme Court is uncertain at this juncture. The fact that a statute might operate unconstitutionally under some plausible set of circumstances is insufficient to render it wholly invalid.28 However, given the long standing debates concerning the legitimacy of grandparent visitation rights, the Supreme Court must make it clear the manner in which the visitation standards are to be applied to avoid continuing controversy over the constitutionality of the statute. Until the court makes its ruling, unfortunately, grandparent visitation rights are still in limbo in Illinois.
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1. USCA Const. Amend. 14, Stanley v. Illinois, 405 US 645(1972)

2. Ill. Rev.Stat. 1975, ch 40,par 19

3. 66 Ill.2d 28, 4 Ill.Dec.313,360 N.E.2d 60.

4. See, Boyles v. Boyles, 14 Ill.App.3d.602, 302 N.E.2d 199 (1973)

5. 530 U.S. 57, S.Ct. 2054 (2000)

6. Id.

7. Id.

8. Id.

9. Id.

10. Id. Citing, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct.571 (1925), see also, Meyer v. Nebraska, 262 U.S.390 43 S.Ct. 625 (1923)

11. Id.

12. See, Prince v. Massachusetts, 321 U.S. 158 (1944), see also, Wickham v. Byrne, 199 Ill.2d 309 (2002)

13. Id.

14. See, Lulay v. Lulay, 193 Ill.2d.455 (2000), see also, Wickam v. Byrne, id.

15. Mulay et.al. v. Mulay, S.Ct. Docket No. 102619 (March 22, 2007)

16. Id.

17. See, Wickham id. at 316

18. People ex rel. Ryan v. World Church of the Creator, 260 Ill.Dec.180, 760 N.E.2d 953, see also, In re. C.E., 204 Ill.Dec. 121, 641 N.E.2d 345 (1994).

19. R.C. 3109.11,3109.12,3109.051

20. Harrold v. Collier, 107 Ohio St. 3d 44, 2005-Ohio-5334

21. 367 Ill.App.3d 328,859 N.E.2d 1063 (2006)

22. Id.

23. Id.

24. Id.

25. Id.

26. See, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (1944)

27. See, Troxel at 2063 and 2064

28. 481 U.S. 739,745, 107 S.Ct. 2095 (1987).


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