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August 2011Volume 55Number 1PDF icon PDF version (for best printing)

Wickham v. Byrne revisited—Its legacy

Illinois’ grandparent visitation statute has a constitutionally troubled history. In the case of Wickham v. Byrne,1 the Illinois Supreme Court declared the original grandparent visitation statute facially unconstitutional. A short time prior to that decision, the Court had declared the statute unconstitutional as applied in the case of Lulay v. Lulay.2 Following the Court’s decisions in Lulay and Wickham, effective January 1, 2005, the General Assembly amended the former statute.3 Surprisingly, since that time, there have been relatively few reported cases involving the new grandparent visitation statute in any of its permutations.

The one occasion where the issue has been squarely presented to our Supreme Court was in the case of Mulay v. Mulay.4 In Mulay, the Circuit Court of Peoria County determined that the current version of the grandparent visitation statute was unconstitutional for substantially the same reasons as the Wickham court had determined the previous statute to be unconstitutional. The Supreme Court, however, refused to decide the constitutionality issue in Mulay; rather, the Court determined that the cause should be remanded to the circuit court to rule on a pleading motion filed pursuant to section 2-615 of the Illinois Code of Civil Procedure before it would address the constitutionality issue. There are no other reported cases in Illinois where the constitutionality of the new statute has been addressed by a court of review.

It is the purpose of this article to address three major issues which directly impact the issue of the constitutionality of the current statute.

A. Substantive Due Process

In the case of Troxel v. Granville,5 the United States Supreme Court, in a plurality opinion authored by Justice O’Connor, determined that a statute such as our grandparent visitation statute, which allowed the court to interfere with a fit parent’s decision regarding the care, custody and control of his or her children, implicated a fundamental liberty interest. As such, the statute had to further a compelling state interest to pass constitutional muster.

In the Wickham case, our Supreme Court began its analysis with the Troxel decision. It explained that one of the fundamental rights protected under the fourteenth amendment is the right of parents to make decisions concerning the care, custody and control of their children without unwarranted state intrusion.6 The court then discussed in some detail the kind of state interference with fundamental parental child-rearing rights that are justified. The court categorized those situations in which such interference had been justified as instances which were necessary “to protect the health, safety and welfare of children.”7 The examples listed by the court as satisfying that test included such things as required testing for phenylketonuria at birth, certain required immunizations, required hearing and visual examinations, and the prohibition of child labor. All of the matters cited by the court dealt directly with the physical integrity and safety of the child. The Wickham court was satisfied that such matters met the compelling state interest test.

The Wickham court then turned to the assertion made by the grandparents in that case. The grandparents argued that under the grandparent visitation statute, the trial judge steps into the shoes of the deceased parent to protect and maintain the children’s family heritage. Our Supreme Court weighed that argument against the kinds of things which it determined would meet the compelling state interest test. In its analysis, the Court concluded:

This argument overlooks the clear constitutional directive that state interference should only occur when the health, safety or welfare of the child is at risk. The issue we address [grandparent visitation] does not involve a threat to the health, safety or welfare of children.8

[Emphasis added].

The Wickham court further explained that, unlike the statutes concerning inoculation or immunization, which did involve those threats, the grandparent visitation statute involved a parent’s decision to control who may interact with his or her children.

After the Wickham decision was handed down, the appellate court for the fifth district had occasion to discuss its import in the case of In re the Marriage of Ross.9 In defining the scope of the Supreme Court’s ruling in Wickham, the court said:

The [Wickham] court stated that state interference with fundamental parental child-rearing rights is justified only in limited circumstances to protect the health, safety and welfare of children . . . The court held that grandparent visitation does not involve a threat to health, safety or welfare of children and that, therefore, the state’s inference with fundamental parental child-rearing rights was not justified.10

The holding in Wickham, together with the appellate court’s discussion in Ross, raises a serious question as to whether the legislature can ever enact a grandparent visitation statute which would pass muster under the substantive due process analysis. The most compelling question that must be answered when ruling on the constitutionality of our current grandparent visitation statute is whether it or any similar statute can ever be justified by a compelling state interest.

B. “Unreasonable Denial of

The current statute requires, as a threshold for filing a petition, that the denial of grandparent visitation by a parent be “unreasonable.”11 It is apparent that the determination of what is “unreasonable” must be made by the trial court initially. That provision itself raises a significant constitutional question under both Troxel and Wickham.

In Troxel,12 the court noted that there is a presumption that fit parents act in the best interests of their children. The Wickham court likewise endorsed such a presumption when it said:

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. The presumption that parents act in their children’s best interest prevents the court from second-guessing parents visitation decisions. Moreover a fit parent’s constitutionally protected liberty interest to direct the care, custody and control of his or her children mandates that parents-not judges-should be the ones to decide with whom their children will and will not associate.13

[Emphasis added].

The current grandparent visitation statute imposes the obligation upon the trial court to pass judgment on the reasonableness of a fit parent’s decision to refuse visitation as a prerequisite for allowing the petition to be considered. It is difficult to surmise how a court may determine the reasonableness of a parent’s decision to allow or not allow visitation without, in the first instance, substituting its judgment for that of the parent. It would seem that is precisely what our Supreme Court in Wickham said the trial court lacked the constitutional authority to do. The Wickham court foreclosed any possibility of any such substitution being constitutional.

C. “Rebuttable Presumption”

The former statute required that the petitioning party show that the visitation was in the “best interest” of the child. The current statute substitutes that provision with a requirement that the petitioning party show “harm” to the child resulting from the parent’s denial of visitation.14 Further, the current statute creates a “rebuttable presumption” that a fit parent’s actions and decisions are not harmful.

It appears that the rebuttable presumption was added in response to the Supreme Court’s comments in Wickham to show additional deference to the parent’s decision regarding visitation. However, an analysis of the statutory language, and of the law related to rebuttable presumptions, reveals that, in fact, such a rebuttable presumption adds nothing to the statute.

An examination of the operation of rebuttable presumptions clearly illustrates the point. Typically such presumptions arise to assist the party having the affirmative of an issue. For example, in the case of Bell v. Reid,15 one issue was whether the driver of the vehicle in the case was the agent of the owner. The law created a rebuttable presumption that such a relationship existed. The plaintiff, having the burden of proof on the issue of agency, introduced minimal evidence that such a relationship existed. Because the defendant did not rebut the presumption, the fact of the presumption sustained a finding for the plaintiff.

Another example of such a rebuttable presumption is the presumption that the addressee receives a letter upon proof that it was mailed to the proper address.16 Such a presumption aides the party having the affirmative of the issue, that is, the burden of proof that s/he has notified the other party of some fact. In the absence of any rebuttal to the presumption, the party having the burden of proof prevails on the issue of notice just as the plaintiff prevailed on the issue of agency in Bell v. Reid.

The quirk of the rebuttable presumption created by the current grandparent visitation statute is that it assists the party who does not bear the burden of proof. Under the former statute, case law is clear that the burden of proof was on the grandparent seeking visitation.17 Similarly, the current statute is clear by its plain language that the grandparent seeking visitation bears the burden of proof to show that the lack of visitation is harmful. The party denying visitation does not bear this burden. Because the rebuttable presumption included in this statute does not assist the grandparent seeking visitation, but rather assists the parent who does not bear the burden of proof, it is superfluous and has no meaningful effect.

An analysis of the interplay between burdens of proof and rebuttable presumptions is useful to illustrate this point. It has long been held that the usual test of burden of proof and its operation is to determine which party would win if no evidence were offered at all.18 Under both the current and the former grandparent visitation statutes, the answer to that is obvious. The burden of proof, whether through caselaw or by the plain language of the statute, was on the grandparent seeking visitation. In the absence of any evidence offered by the grandparent, the party denying visitation prevails. The question, then, is what effect the addition of a rebuttable presumption has on this outcome.

Thirty five years ago, in the case of Diederich v. Walters,19 the Supreme Court held that as soon as any evidence is produced which is contrary to a rebuttable presumption, the presumption vanishes entirely.20 In the case of presumption of delivery of a letter, for example, the presumption is entirely rebutted and disappears by the simple fact that the person to whom the letter was addressed denies receiving it. At that point, the presumption ceases to operate and the issue becomes one of fact.

Applying this holding to the grandparent visitation statute, we see that all a grandparent must do to overcome the presumption is offer any evidence that the denial of visitation causes harm to the child. At that point, as a matter of law, the presumption ceases to operate, and the parties are left in the same position which they would have been had the presumption never existed, with the grandparent seeking visitation still bearing the burden of proof. Whether there is a presumption in place or not, the grandparent must offer some evidence to show that the denial of visitation harms the child. This is an intrinsic requirement of the burden of proof, and adding a presumption favoring the parent creates no heavier burden on the grandparent than simply assigning him or her the burden of proof. The rebuttable presumption is essentially no more than a redundancy.

This procedural quirk exists because the statutorily created presumption is not in favor of the party having the affirmative of the issue; rather, it assists the defending party. This assistance is unnecessary and offers no assistance at all, as the defending party is already favored by the statute’s placing the burden of proof on the plaintiff. The same result is reached whether the presumption exists or not; in the absence of any evidence, the defending party, the parent, prevails solely by the grandparent’s failure to meet the burden of proof, without regard to the presumption. As soon as the moving party produces any evidence of “harm,” the presumption vanishes, and the burden then shifts to the defending party to refute that evidence of harm. Again, the presumption does not accomplish anything not already accomplished by assigning the burden of proof to the petitioning party.

For the presumption to grant any significant deference to a parent’s decision regarding visitation, it is submitted that the legislature would have to amend the statute to require that the presumption be overcome by clear and convincing evidence. Until such an amendment, the operation of the current statute regarding any presumption in favor of a parent is no different from the operation of the former statute which the Wickham court declared to be facially unconstitutional.


There are significant issues that call into question the constitutionality of the current version of the grandparent visitation statute. The flaws found in the former statute by our Supreme Court in Wickham have not been meaningfully addressed in the current version. Indeed, the Wickham decision raises, in at least two regards, a serious question as to whether any grandparent visitation statute can ever pass substantive due process muster in the face of what appears to be the constitutionally conclusive presumption that a fit parent has a fundamental right to control, inter alia, access by others to his child. Further, the inclusion of a rebuttable presumption favoring the party not bearing the burden of proof is a redundancy that fails to show any further deference to that fundamental right. The language lends nothing to the statute that elevates the harm requirement to a level that invokes a compelling state interest.

Hopefully, sooner rather than later, the court will address what is clearly an abiding issue that will continue to create uncertainty in the practice of family law in this state until it is definitively addressed. ■


1. 199 Ill. 2d 309, 769 N.E. 2d 1 (2002).

2. 193 Ill. 2d 455, 739 N.E. 2d 521 (2000).

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

4. 225 Ill. 2d 601, 870 N.E. 2d 328 (2007).

5. 530 U.S. 57, 120 S. Ct. 2054 (2000).

6. 199 Ill. 2d 309 at 316, citing Troxel, 530 U.S. 57 at 66.

7. 199 Ill. 2d 309 at 317.

8. Id.

9. 355 Ill. App. 3d 1162, 824 N.E. 2d 1108 (5th Dist. 2005).

10. Id. at 1168.

11. 750 ILCS 5/607(a-5)(1).

12. 530 U.S. 57 at 68.

13. 199 Ill. 2d at 318.

14. 750 ILCS 5/607(a-5)(3).

15. 118 Ill. App. 3d 310, 454 N.E. 2d 1117 (5th Dist. 1983).

16. See, inter alia, City of Chicago v. Supreme Savings and Loan Association, 27 Ill. App. 3d 589, 327 N.E. 2d 5 (1st Dist. 1975).

17. In re Marriage of Mehring, 324 Ill. App. 3d 262, 755 N.E. 2d 109 (5th Dist. 2001).

18. Village of Park Forrest v. Angel, 37 Ill. App. 746, 347 N.E. 2d 278 (1st Dist. 1976).

19. 65 Ill. 2d 95, 357 N.E. 2d 1128 (1976).

20. Id. at 100-102.

Member Comments (1)

I agree that it is a badly-worded statute. The list of factors to be considered by the court in 607(a-5)(4) seem to bear no relationship to the burden of proof set forth in (a-5)(3) that the parent's decisions are harmful to the child. How does proof of a parent or grandparent's "good faith" help the trier of fact to determine if an action is harmful? I believe the "harm" to be proven must rise to the level of suicidal thoughts or self-destructive behavior, or suddenly doing poorly in school. Something concrete, more than just the lack of a friendly grandparent relationship. Just as missing a dose of vitamins should not be considered "harmful", missing regular contact with a benign set of grandparents -- in itself -- should never be considered "harmful".

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