CAROL ANNE CHODZKO, Appellant, v. THADDEUS L. CHODZKO.—(John C. Setecka, Appellee.)
No. 48282
Supreme Court of Illinois
November 15, 1976
January 28, 1977
Louis Jaffe and Hass & Dienstag, Ltd., of Chicago (Adolph L. Haas, Gary E. Dienstag, of counsel), for appellant.
MR. JUSTICE RYAN delivered the opinion of the court:
This is an appeal from an order of the circuit court of Cook County which allowed the maternal grandfather, John C. Setecka, to intervene in a divorce proceeding and granted him certain visitation rights with the minor children of the parties to the divorce proceeding. The appellate court affirmed with one justice dissenting. (35 Ill. App. 3d 357.) We granted leave to appeal.
On June 22, 1965, a decree for divorce was entered in favor of the plaintiff, Carol Anne Chodzko (hereafter referred to as the mother). By the decree she was “awarded the sole custody, education and сontrol” of the four minor children. Although the divorce decree made no provision for the husband‘s right of visitation, it appears from the record that he exercised his right of visitation with the children two days each week. It also aрpears that following the divorce decree the maternal grandfather of the four children, with the consent of the mother and father, visited his grandchildren on an average of once a week for the next six years. In January 1972, hоwever, the mother informed her father that she would no longer permit these visits.
On May 24, 1972, the grandfather (appellee in this case) filed a petition in the circuit court of Cook County to intervene in the divorce proceeding sеeking an order that he be granted the right to visit his grandchildren. The mother of the children filed a motion to dismiss the petition, contending that the grandfather lacked standing to intervene in the divorce proceeding and also contending that the intervening petition failed to state a cause of action entitling him to the relief sought. The motion to dismiss was denied, and the grandfather was allowed to intervene. His petition alleged that “a deep and abiding
Following a denial of the mother‘s motion to dismiss, pursuant to an order of the court she filed an answer to the petition to intervene in which she alleged the injurious nature of the grandfather‘s visits and their interference with her instruction and discipline of the children and prayed that the petition be dismissed. The trial judge held a private cоnference with the mother, following which proceedings were held in open court. In the course of these proceedings the father of the children advised the judge that he was desirous of having the children visit with their grandfather; that suсh visitations could take place on a Sunday when he, himself, had visitation rights; that he would pick the children up at their home, take them to their grandfather, and return them to their mother at an agreed hour. Although it does not appeаr in the record, the mother apparently assented on June 27, 1972, to permit the grandfather visitation on one Sunday each month temporarily. This conclusion is drawn from the contents of a later order entered on Septembеr 27, 1972, continuing in effect “the voluntary one Sunday per month visitation with petitioner as has been exercised since the last hearing.”
On December 6, 1972, the court entered the following order:
“It is hereby ordered that the grandfather of the minor children be permitted until the further order of the court tо visit with said minor children one Sunday each month in the same manner as such visitation has existed since June 27, 1972, as agreed by the parties and without prejudice.”
The mother filed a motion to vacate the order of December 6, and the motion was denied.
The mother maintains that visitation privileges can be extended to grandparents only when it is shown that special circumstances beyond mere mutual affection exist to justify an order awarding such visitation. Since thе grandfather‘s petition to intervene contained no allegation of such special circumstance and none is shown in the record, the mother contends that the trial court erred in granting visitation to the grandfather. We agrеe with the mother‘s contention.
Under the provisions of section 18 of the Divorce Act (
In People ex rel. Whalen v. Sheehan 373 Ill. 79, this court held that the superior right of the natural father prevailed and that the trial court erred when it, in awarding the care and custody of the child to the father, also provided that the grandрarents have a right of visitation from 11 a.m. to 3 p.m. each Sunday. This court held that the law in this State did not authorize awarding to the grandparents partial custody and visitation privileges.
We cannot conclude from the holding in Sheehan, however, that grandparents are precluded from all visitation rights by the superior right of a natural parent. Several appellate court decisions in this State have found that the best interests of the children were served by granting visitation privileges to grandparents in cases involving sрecial circumstances.
In Solomon v. Solomon, 319 Ill. App. 618, the custody of a two-year-old son had been awarded to the mother in a divorce decree and the father had been granted visitation rights. Shortly thereafter the father was inducted into the armеd forces and was stationed in Oregon. Since he could not easily arrange travel to Chicago he petitioned the court to allow his parents to visit with the child during his absence. The father‘s petition alleged that in his absencе the only method of maintaining contact with his child was through his parents. It was held that granting the grandparents visitation privileges under such circumstances was proper.
In Lucchesi v. Lucchesi, 330 Ill. App. 506, the paternal grandparents petitioned the court for visitation rights with their grandchild after its father was killed in World War II. By the terms of the father‘s will the grandparents were made trustees of a fund out of which they were to pay a monthly allowance to the mother for
In Boyles v. Boyles, 14 Ill. App. 3d 602, the mother of a child had been granted custody in a divorce decree. After her death the court awarded custody of the child to the father. The trial court denied the petition of the mother‘s parents for visitation rights. The appellate court held that it was error for the trial court to base its decision on a supposed rule that the grandparents must be denied such rights as a matter of law. The court based its decision on the special circumstances which appeared in the case: the child had just lost his mother and was extremely close to his grandparents by virtue of the fact that he had visited with them every day prior to the mother‘s death. The court summarized its holding as follows:
“We believe where a parent has diеd, the continuation of the relationship between child and grandparents, which may be promoted by visitation, may be a positive benefit affecting the best interest of the child.” 14 Ill. App. 3d 602, 604.
In the intervening petition in our case there are no allegations and there is no proof of facts which support a conclusion that either parent is unfit or has forfeited its natural superior right to the custody and care of the children. Also, no special circumstances have been established that would warrant granting special visitation rights to the grandfather. It is commendable that a bond of love and affection, as alleged, exists between the grandfather and the minor children; however, this and the allegation of past favors do not justify carving out of the custody and visitation rights of the natural parents still another
The grandfather, as well as the majority of the appellate court, emphasizes the willingness of the father to have visitation privileges granted as requested. The fact that the father is willing to have the court grant the grandfather visitation during the time that the father ordinarily has the children is no reason to give judicial sanction to such an arrangement and to judicially interfere with the mother‘s right to custody.
We must conclude that the giving of the visitation rights to the grandfаther over the objections of the mother in the absence of any special circumstances justifying the interference with the superior custodial right of the natural parent was error.
The judgments of the circuit and appellate courts are reversed.
Judgments reversed.
Dissenting Opinion Upon Denial Of Rehearing.
MR. JUSTICE DOOLEY, dissenting:
I dissent. The majority has confused “visitation rights” with “custody.” Each is wholly different from the other and governed by different rules of law.
Visitation rights were granted to grandparents in Boyles v. Boyles (1973), 14 Ill. App. 3d 602, in People ex rel. Lutz v. Lutz (1975), 24 Ill. App. 3d 948, and in other appellate court decisions, and the propriety of extending such rights to grandparents was presupposed in People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201.
The majority, while conceding that grandparents are not debarred from visitation rights, limits such rights to
The matter of visitation rights, as the majority admits, turns on what is in the best interests of the children. Despite repeated invitations by the trial court, the mother flatly declined to participate in a hearing to determine the effect of visitаtions by the grandfather on the children. Accordingly, the court denied her motion to dismiss.
I would affirm the decisions below as to the jurisdiction of the circuit court, and remand the cause for a hearing on the merits so that there can be a judicial determination of what is in the best interests of these minor children.
MR. JUSTICE CLARK joins in this dissent.