Grandparent visitation case heard by the First District Appellate Court

In re Anaya R., a Minor, ___ N.E.2d___, 2012 IL App (1st), 121101

On August 31, 2012, the Illinois Appellate court, while affirming the trial court’s denial of grandparent visitation, emphasized the importance of a healthy parent-grandparent relationship when evaluating whether to grant grandparent visitation.

On July 12, 2011, the paternal grandmother (“Mildred”) filed a petition for grandparent visitation and amended petition for guardianship of her granddaughter (“Anaya”). Mildred stated that because the child’s father was out of the country, and the mother (“Vanessa”) was unwilling to care for Anaya, that it would be in Anaya’s best interest for the court to appoint Mildred as her guardian.

Under the Illinois Marriage and Dissolution of Marriage Act, a grandparent may file for visitation with his or her grandchildren under certain circumstances:

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, requesting visitation in accordance with this Section … Except as otherwise provided in this subsection (a-5), 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:

(A-5) the child’s other parent is deceased or has been missing for at least 3 months. For the purposes of this Section a. parent is considered to be missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency;

(A-10) a parent of the child is incompetent as a matter of law;

(A-15) a parent has been incarcerated in jail or prison during the 3 month period preceding the filing of the petition;

(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;

(C) (Blank);

(D) the child is born out of wedlock, the parents are not living together, and the petitioner is a maternal grandparent, great-grandparent, or sibling of the child born out of wedlock; or

(E) the child is born out of wedlock, the parents are not living together, the petitioner is a paternal grandparent, great-grandparent, or sibling, and the paternity has been established by a court of competent jurisdiction.

750 ILCS 5/607 (a)(3) and (a-5)(1).

The grandparent has the burden of proving that the parent’s denial of visitation is harmful to the child’s mental, physical, or emotional health. 750 ILCS 5/607(3). This new Grandparent Visitation Act, which took effect in 2005, is more restrictive than the former version of the act, which the Illinois Supreme Court declared unconstitutional on its face in 2002. Wickham v. Byrne, 199 Ill. 2d 309, 263 Ill. Dec. 799, 769 N.E.2d 1 (2002).

The Wickham decision came shortly after the United States Supreme Court case of Troxel v. Granville, which ruled that Washington State’s third-party visitation statute was unconstitutional as applied. 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). The Troxel Court stopped short of declaring all state grandparent visitation statutes unconstitutional; but the decision (a plurality) set the foundation for the Wickham holding by stating that the wishes of a fit parent must be given deference regarding third-party visitation requests.

After Troxel, in 2000, the Illinois Supreme Court held in Lulay v. Lulay that state-mandated grandparent visitation was unconstitutional as applied to the children of divorced parents, where both parents object to visitation, seeing it as an infringement on the parents’ fundamental liberty interest in raising their children. 193 Ill.2d 455, 250 Ill. Dec. 758, 739 N.E.2d 521 (2000).

The Troxel and Wickham courts’ deference to the wishes of a fit parent manifests itself in the In Re Anaya R., a Minor decision. During the hearing for Mildred’s petition for grandparent visitation in January, 2012, 12 witnesses testified on Mildred’s behalf, including Mildred. All the witnesses testified generally that Mildred cared for Anaya’s mother (“Vanessa”) during her pregnancy, cared for Vanessa like a daughter, and has always been involved in Anaya’s life.

Vanessa called two witnesses, including herself. The witnesses testified generally that though Mildred helped with child care, that the relationship between Mildred and Vanessa was strained because Mildred was overbearing and tried to take Anaya away from Vanessa.

In spite of all the witnesses testifying as to Mildred and Anaya’s lasting relationship, the GAL argued against granting Mildred visitation because of her overbearing attitude and combative relationship with Vanessa. The GAL also argued that Vanessa’s denial of visitation was reasonable and understandable, in light of Mildred’s overbearing attitude and Vanessa’s fear that Mildred would take Anaya away.

The trial court denied Mildred’s petition for visitation, adding that Mildred “was her own worst enemy,” and that she was “domineering and overbearing.” The Court recognized that Mildred had a strong relationship with the child, and also that Mildred was an active participant in caring for the child. But, in spite of Mildred’s relationship with Anaya, and in light of Mildred’s combative and overbearing relationship with Vanessa, the court found that Mildred and Anaya’s relationship to be an insufficient basis for awarding visitation.

On appeal, Mildred claimed the trial court erred in denying her petition for visitation because she met her burden of proof that the denial of visitation would harm the child. The GAL restated his earlier argument: even though Mildred had a lasting relationship with Anaya, her combative and overbearing relationship with Vanessa weighed against her petition for visitation.

The appellate court affirmed the trial court’s finding, highlighting that the trial court placed the most weight on the relationship between Mildred and Vanessa, as opposed to the relationship between Mildred and Anaya. This case stands out among other grandparent visitation cases in that the Court strongly considered the parent-grandparent relationship when determining whether to award grandparent visitation. Even in the face of a strong grandparent-grandchild relationship, if a grandparent is uncooperative with and fights with a parent, the court will be less likely to award visitation. ■


This article was originally published in the October 2013 issue of the ISBA's General Practice, Solo & Small Firm newsletter.

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