VIRGINIA WICKHAM, Aрpellee, v. PAUL MICHAEL BYRNE, Appellant.—BRENT LANGMAN et al., Appellants, v. AMY LANGMAN, Appellee.
No. 92048, No. 92135
Supreme Court of Illinois
April 18, 2002
309 Ill. 2d 309
GARMAN, J., concurring in part and dissenting in part.
No appearance for appellee.
Adrienne W. Albrecht, of Sacks, Albrecht & Gubbins, of Kankakee, for appellants.
Richard W. Zuckerman, of Peoria, for appellee.
Patricia M. Logue, of Chicago, for amicus curiae Lambda Legal Defense and Education Fund, Inc.
JUSTICE FITZGERALD delivered the opinion of the court:
At issue in these consolidated cases is whether certain provisions of section 607 of the Illinois Marriage and Dissolution of Marriage Act (Act), commonly called the grandparent visitation statute, violate a parent‘s due process rights. See
BACKGROUND
The Wickham Petition
Paul Michael Byrne (Paul) and Lizabeth Wickham Byrne (Lizabeth) were married and had one child, J.B., born November 7, 1997. Lizabeth died September 14, 1998. In her last will and testament, Lizabeth expressed
Initially, Paul moved to dismiss the petition based upon decisions of the United States Supreme Court and this court. See Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality opinion); Lulay v. Lulay, 193 Ill. 2d 455 (2000). Paul argued that section 607(b)(1) of the Act violated the due process clauses of the Illinois and United States Constitutions.
At the hearing on Virginia‘s petition, the court heard tеstimony from Paul, Virginia, and J.B.‘s pediatrician. Prior to ruling, the court stated that “[t]he standard to be used in grandparent‘s visitation is the best interest of the child. Generally, it‘s presumed that a relationship with a grandparent is in the best interest of the child.” However, the court held that Virginia‘s attempts to undermine the relationship between Paul and J.B. by filing frivolous and unfounded complaints with the Department of Children and Family Services and interfering with J.B.‘s pediatric care without Paul‘s consent warranted limited visitаtion. Thus, the court denied overnight visitation, but ordered supervised visitation with
Following the trial court order, Paul filed an “Amended Motion to Dismiss Complaint” and renewed his argument based upon Troxel and Lulay. The trial court again denied the motion, finding that:
“[T]he state may have a compelling interest in ordering visitation between J.B. and Ms. Wickham over Mr. Byrne‘s objection.
* * *
Mr. Byrne has not shown that the asserted state interest in requiring him to permit Ms. Wickham to visit with J.B. is either illusory or not compelling. Under these circumstances, this court holds that, as applied to the facts of this case as developed thus far, Section 607(b)(1) does not violate Mr. Byrne‘s constitutional parental rights.”
Paul filed an application for an interlocutory appeal under Illinois Supreme Court Rule 308. See 155 Ill. 2d R. 308. The appellate court denied Paul‘s application. We granted Paul‘s petition for leave to appеal. See 177 Ill. 2d R. 315(a).
The Langman Petition
Amy and Rhett Langman were married and had two children, T.L., born September 3, 1995, and P.L., born June 25, 1998. Rhett died on September 20, 1998. Prior to Rhett‘s death, his parents, Rita and Brent Langman (Rita and Brent), maintained a close relationship with their grandchildren, seeing the children two to three times a month. Immediately after Rhett‘s death, Rita and Brent continued this relationship by baby-sitting the children each Tuesday night so that Amy could attend social activities. Rita and Brent asked Amy for more time with the children, including overnight visits. Amy rejected the idea and told Rita and Brent that she was unhappy with their refusal to follow her directions when
Unable to resolve their differences, Rita and Brent filed a petition in the circuit court of Kankakee County for grandparent visitation under section 607(b)(1). The petition stated, in part: “That it is in the minor children‘s best interest that the Petitioners [Rita and Brent] be allowed specific visitation with them outside of the presence of the Respondent [Amy] in order to further and foster the close family relationship that they previously shared and in order that they grow up sharing the love and concern of their father‘s family as well as that of their mother.” After Rita and Brent filed their petition fоr visitation, Amy moved to Missouri, six hours away from Rita and Brent, with the children to make a fresh start, telling Rita and Brent, “I don‘t come back for my own family and I don‘t come back for my friends.”
On March 17, 1999, at the hearing on the petition for visitation, 17 witnesses testified. Additionally, the parties submitted written closing arguments to the court, which included suggested visitation schedules. On August 2, 2000, the trial court issued its order with an accompanying memorandum. In its memorandum, the trial court stated:
“[T]estimony revealed the mother is a loving caring mother who wishes to protect her children from exposure to things she feels are in appropriate [sic].
* * *
All of the parties are responsible, moral and caring people. The children‘s mother does not object to visitation but only on her terms, which appear to be supervised visits in her presence.
This is a particularly difficult case because all of the
parties believe they are doing what is in the best interest of the children. The Court can not do more than balance the right of the parent and grandparents. The State of Illinois has sought to protect relationships children have with their grandparents yet it also must protect the rights of a parent to whose preliminary right and responsibility it is to care for and nurture their children. The real test, in the best interest of the children, is the test that must be applied here. It has been the law of Illinois for over 30 years that when considering the best interest of the children the Court must look at ‘all matters that have a bearing upon the welfare of the child.’ ”
The trial court continued: “[T]here is a strong indication that unsupervised grandparental visitation would be of great benefit to the children. Their father is deceased, his surviving family is the only connection the children can have with those who had an intimate and close family relationship.” The trial court ordered visitation, beginning gradually with afternoon visits, and eventually leading to unsupervised visits one full weekend each month. The trial court ordered that Amy split the costs of transportation with Rita and Brent. Further, the trial court ordered telephone contact one day a week for up to 15 minutes. Amy appealed.
The appellate court reversed the trial court order. 325 Ill. App. 3d 101, 108 (2001). Citing to Troxel and Lulay, the appellate court held that section 607(b)(1) of the Act, as applied in this case, unconstitutionally infringed on Amy‘s fundamental right to make decisions concerning the care, custody, and control of her children. 325 Ill. App. 3d at 107. The appellate court declined to consider whether section 607(b)(1) is facially unconstitutional. 325 Ill. App. 3d at 107.
We granted Rita and Brent‘s petition for leave to appeal and consolidated these cases.
ANALYSIS
Less than two years after our decision in Lulay, we
Citing to Troxel and Lulay, Paul and Amy argue that sections 607(b)(1) and (b)(3) as applied to a single parent‘s decision regarding grandparent visitation violate a parent‘s fundamental constitutional right to make decisions concerning the care, custody, and control of his or her children. Additionally, Paul argues that sections 607(b)(1) and (b)(3) are facially unconstitutional.
Section 607(b) states, in pertinent part:
“(b)(1) The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any minor child upon petition to the court by the grandparents or great-grandparents or on behalf of the sibling, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce such visitation privileges. Except as provided in paragraph (2) of this subsection (b), a petition for visitation privileges may be filed under this paragraph (1) * * * if one or more of the following circumstances exist:
(A) the parents are not currently cohabiting on a permanent or an indefinite basis;
(B) one of the parents has been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts;
(C) one of the parents is deceased;
(D) one of the parents joins in the petition with the grandparents, great-grandparents, or sibling; or
(E) a sibling is in State custody.
* * *
(3) When one parent is deceased, the surviving рarent shall not interfere with the visitation rights of the grandparents.”
750 ILCS 5/607(b) (West 2000).
Under Illinois law, statutes carry a strong presumption of constitutionality. People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 120 (2001); People v. Sanders, 182 Ill. 2d 524, 528 (1998). Whenever reasonable, courts must construe a statute to uphold its constitutional validity. World Church of the Creator, 198 Ill. 2d at 120; Sanders, 182 Ill. 2d at 528. A statute is facially invalid only if the party challenging the enactment can establish ” ‘that no set of circumstances exists under which the Act would be valid.’ ” In re C.E., 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, 481 U.S. 739, 745 (1987). We review de novo the constitutionality of the Act. Lulay, 193 Ill. 2d at 469.
The fourteenth amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”
The petitioning grandparents argue that under the Act, the trial judge steps into the shoes of the deceased parent to protect and maintain the children‘s family heritage. This argument overlooks the clear constitutional directive that state interference should only occur when the health, safety, or welfare of a child is at risk. The issue we address does not involve a threat to the health, safety, or welfare of сhildren. Unlike the statutes concerning inoculation or immunization, sections 607(b)(1) and (b)(3) involve visitation and a parent‘s decision to control who may interact with his or her children. Additionally,
Although the appellate court examined the constitutionality of section 607(b)(1) as applied to a single parent‘s decision to limit grandparent visitation, we are compelled to examine the overall constitutional validity of the statute. Wе begin with the presumption that a fit parent‘s decision to deny or limit visitation is in the child‘s best interests. See Troxel, 530 U.S. at 68 (“there is a presumption that fit parents act in the best interests of their children“); see Parham, 442 U.S. at 602; Lulay, 193 Ill. 2d 455.
“The law‘s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making
life‘s difficult decisions. More important, historically it has recognized that natural bonds of affection lead рarents to act in the best interests of their children.’ ” Troxel, 530 U.S. at 68, quoting Parham, 442 U.S. at 602.
In Troxel, a mother limited visitation between her children and their paternal grandparents, after the father of her children committed suicide. The paternal grandparents petitioned for visitation under a Washington state visitation statute, and the United States Supreme Court examined the constitutional validity of that statute. Ultimately, the Court held that the statute was unconstitutional because it allowed “any third party seeking visitation to subject any decision by a parent concerning visitation of the parent‘s children to state-court review.” (Emphasis added.) Troxel, 530 U.S. at 67. The statute was held unconstitutional because it was “breathtakingly broad.” Troxel, 530 U.S. at 67.
The Court also discussed a second statutory flaw: “the Washington statute places the best-interest determination solely in the hands of the judge.” Troxel, 530 U.S. at 67. The Court criticized the considerable discretion the judge could exercise under the statute, stating that “it gave no special weight at all to [the mother‘s] determination of her daughters’ best interests.” Troxel, 530 U.S. at 69. The Washington statute undermined the parent‘s fundamental right to make decisions regarding the care and custody of her child because the parent‘s decision regarding visitation was no longer presumed to be in the child‘s best interests. Troxel, 530 U.S. at 69-70. Instead, that decision was debated by the parties to the litigation before a judge, with the parent
“In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent‘s decisions of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent‘s own determination.” Troxel, 530 U.S. at 70.
The Court did not reject the significance of the relationship between grandparents and their grandchildren; it simply acknowledged the presumption that a parent‘s decision regarding visitation is in the children‘s best interest.
Section 607(b)(1) contains a similar flaw to the statute at issue in Troxel. Section 607(b)(1) permits grandparents, great-grandparents, or the sibling of any minor child visitation if “the court determines that it is in the best interests and welfare of the child.”
Our holding does not depart from the prеvious decision of this court in Lulay. In Lulay, we held that section 607(b)(1) was unconstitutional as applied to the parents’ joint decision to deny or limit visitation. Lulay, 193 Ill. 2d at 479-80. Our decision rested upon the principle that parents maintain an established fundamental liberty interest in making decisions regarding the care, custody, and control of their children. Lulay, 193 Ill. 2d 455. We declined to address facial invalidity merely because the issue was “outside the scope of the certified question.” Lulay, 193 Ill. 2d at 480. Yet, importantly, we recognized the presumption that fit parents act in the best interest of their children. Lulay, 193 Ill. 2d at 479. In the instant matter, we are expressly asked to consider whether the statute is invalid on its face.
Furthermore, our holding does not disregard the value of a meaningful relationship between a grandparent and grandchild. In most cases, the relationship between a child and his or her grandparents is a nurturing, loving relationship that provides a vital connection to the family‘s history and roots. However, as with all human relationships, conflicts may arise between a child‘s parents and grandparents. In many cases, this conflict will concern disagreements about how a parent is raising his or her children. Yet, this human conflict has no place in the courtroom. This is true even where the intrusion is made in good conscience, such as the request for visitation to preserve the child‘s only connection to a deceased parent‘s family. Parents have the constitutionally рrotected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presump-
CONCLUSION
For the foregoing reasons, we hold that sections 607(b)(1) and 607(b)(3) of the Act are facially unconstitutional. For this reason, we need not address the appellate court‘s holding that section 607(b)(1) is unconstitutional as applied. We affirm the judgment of the appellate court in Langman, No. 92135, and reverse the order of the trial court in Wickham, No. 92048.
No. 92048—Reversed.
No. 92135—Affirmed.
JUSTICE GARMAN, concurring in part and dissenting in part:
When this court last considered the constitutionality of this statute, three justices would have found the statute unconstitutional on its faсe. Lulay, 193 Ill. 2d at 480-82 (Heiple, J., specially concurring); Lulay, 193 Ill. 2d at 482-83 (Rathje, J., specially concurring, joined by Heiple and Freeman, JJ.) (concluding that the statute is facially unconstitutional because the “fatal flaw * * * will be present in every section 607(b)(1) case” (emphasis omitted)). Thus, at the time this court considered Lulay, we were aware that each subsection of section 607(b) was vulnerable to the same criticism—that the state lacked a compelling interest to justify this significant intrusion into the decision making of fit parents. The majority reаches the question left unanswered in Lulay, whether the entire section must be found unconstitutional on its face, and answers that question in the affirmative.
Section 607(b)(1), however, is another matter. While this section defines a rather narrow class of persons who may bring petitions for visitation—grandparents, great-grandparents, and siblings—it does not limit the class of persons who mаy be named respondents in such actions.
Consider, for example, the case of a young family involved in a tragic automobile accident that kills the father and leaves thе mother so severely injured that her parents seek and are given custody and guardianship of the child. Perhaps blaming their late son-in-law for the accident, the maternal grandparents refuse to permit visitation with the paternal grandparents. Section 607(b)(1)(C) confers standing upon the paternal grand-
In my opinion, when the respondent in the visitation action is a nonparent, the statute could be constitutionally applied because the nonparent respondent would not be exercising a fundamental constitutional right and, thus, strict scrutiny would not apply. In other words, unlike a natural or adoptive parent, a nonparent custodian or guardian is not constitutionally entitled to the presumption that he or she is aсting in the best interest of the child. Without necessarily concluding that section 607(b)(1), as applied to nonparent respondents, meets the rational basis test, I am unwilling to prejudge this issue by finding this provision unconstitutional on its face.
The majority is inclined to resolve the constitutional question once and for all so that piecemeal litigation is not required to invalidate the statute. However, by declaring this section facially invalid, the majority has implicitly declared that nonparent custodians or guardians have fundamental constitutional rights equal to those of parents. This question was not presented by either of the consolidated cases, nor was it briefed or argued. There is no need for the court to go so far.
On the other hand, a good reason exists for narrow-
I firmly believe that we should go only so far as is necessary to resolve the question presented to us in the present case and no further. I, therefore, respectfully dissent from the portion of the opinion that would declare section 607(b)(1) unconstitutional on its face. I would find this provision unconstitutional as applied to any fit parent.