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| Home > Divorce Q&A's: (sect-Custody, Visitation & Removal) > Grandparent Visitation | |||||
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Grandparent VisitationThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2009
Q:In Illinois, may grandparents and other relatives obtain court ordered visitation?A:Since January 1, 2005 grandparents (and others) may seek court ordered visitation in limited circumstances but this law has been changed again effective January 1, 2007. Before the 2005 and 2007 amendments to the grandparent visitation legislation, the answer to this question has been that grandparents in Illinois could not obtain court ordered grandparent visitation. This had been the result of an Illinois Supreme Court decision which struck down the grandparent legislation and held that it was unconstitutional. However, since January 1, 2005, there has been Illinois legislation which allows petitions for grandparent visitation in certain circumstances. Effective January 1, 2007 (Public Act 94-126), this law has been again changed to somewhat liberalize the previous law on grandparent visitation. The Illinois Supreme Court decision invalidating the previous grandparent visitation law followed the United States Supreme Court decision in Troxel v. Granville. In 2002, the Illinois case, Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002), held that Sections 607(b)(1) and 607(b)(3) of the Illinois Marriage and Dissolution of Marriage Act regarding “grandparent visitation” were facially unconstitutional because they unreasonably interfered with parents' fundamental liberty interests to raise the children. The language of Wickham was somewhat sympathetic to the grandparents. It stated: 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 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.
Q:Under the law effective January 1, 2007, what are the situations where the grandparents can apply for visitation?A:The legislation which had previously allowed grandparents to petition for visitation considered the best interest of the children standard. The Illinois Supreme Court struck down this legislation in part because the best interest standard is the same standard that applies between married parents. Instead, the focus under the new law is whether there is an "unreasonable denial of visitation" and if certain other named conditions exist. In short in addition to finding an "unreasonable denial of visitation" and one of certain stated conditions must exist. These conditions include: (A-5) Child's
Other Parent Decreased / Missing > 3 Mos.: 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; There are many other provisions to this legislation which are critical to its implementation.
Q:Do you believe that the new grandparent visitation law will be deemed to be unconstitutional?A:I believe that there are questions about the constitutionality of this legislation and especially the constitutionality of the 2007 amendments of the legislation.
Q:If the new Illinois law is deemed unconstitutional are there situations in which grandparents may obtain visitation?A: There had been a question of whether -- before the enactment of the new grandparent visitation legislation--, the law went back to what it was before there was any law as to the subject. [Under Illinois common law there had been a right to grandparent visitation if there were special circumstances.] M.M.D. Decision: In the M.M.D., the Illinois Supreme Court reviewed the issue of whether there exists a common law right to grandparent visitation and appeared to side-step the issue. The Supreme Court ruled properly side-stepped that issue when it stated: Although the circuit and appellate courts were therefore correct in rejecting Johnson's claim that the visitation agreement was void as a matter of law, there is one aspect of the appellate court's disposition with which we do not agree. In reaching the result it did, the appellate court invoked common law principles governing a court's right to award grandparents visitation privileges beyond those granted by the child's parents. Those principles are inapplicable here. As we have pointed out at several points in this opinion, the case before us involves a consent decree. The Duncans' visitation rights under that decree were conferred voluntarily by Johnson. They were not imposed by the court and did not exceed the limits to which Johnson agreed. Accordingly, the common law authority of courts to award grandparent visitation beyond that allowed by the child's parents is of no relevance. Therefore, we do not know whether there is a common law right for grandparent visitation in special circumstances -- so long as the decision making process of the court is consistent with the Troxel, Lulay and Wickham decisions. Beurkson: In Beurkson v. Graff the First District appellate court ruled that after Illinois Supreme Court had declared grandparent visitation statute unconstitutional, grandparents have no common law right to visitation. The query will be whether the new grandparent visitation statute will also be determined to be unconstitutional. Unfortunately, this question was not answered in M.M.D.
Q:What if I have an agreed order for visitation entered before the previous version of the legislation was deemed unconstitutional?A:You should consult with a lawyer. In M.M.D., the court addressed the issue of an agreed order when it ruled that a consent decree is considered under a different standard as compared to a contested ruling providing for grandparent visitation. The Supreme Court stated: Johnson's petition to terminate alleges that he would not have entered into the visitation agreement with the Duncans had he known that the grandparent visitation statute would subsequently be declared unconstitutional. In making that claim, Johnson appears to be arguing that this dispute falls within the line of cases holding that a party may avoid a contract, as a matter of equity, based on mistake. Without reaching the merits of Johnson's argument, we note simply that it does not provide an adequate basis for reversing the judgments of the circuit and appellate courts in this case. Even if the conditions necessary to avoid a contract based on mistake could be established here, the circuit court did not err in rejecting Johnson's claim that the agreement was a nullity as a matter of law. A mutual mistake as to a basic assumption on which an agreement was made does not render the agreement void. At most, the agreement is merely voidable by the injured party. A lawyer should provide advice based upon the potential for vacatur for any agreed order for grandparent visitation. As the Supreme Court stated, "The contractual nature of the consent decree limits when and under what circumstances the parties to the agreement may seek to alter its terms." In 2005, the Illinois appellate court's addressed a case involving whether there are common law rights to visitation. That case (IRMO Ross, Fifth Dist., February 16, 2005) stated: The special circumstances for which the common law authorized the courts to order grandparent visitation (Boyles v. Boyles, 14 Ill. App. 3d 602 (1973) (the mother died); Lucchesi v. Lucchesi, 330 Ill. App. 506 (1947) (the father died and the grandparents were trustees); Solomon v. Solomon, 319 Ill. App. 618 (1943) (the father was stationed away in the armed forces)) were similar to those circumstances delineated in the statute that Wickham declared to be unconstitutional. 750 ILCS 5/607(b) (West 2000) (visitation is allowed if a parent is deceased, if one of the parents joins in the petition with the grandparents, or if the parents are not cohabiting on a permanent or an indefinite basis). We are inclined to agree with the First District Appellate Court in Beurksen, 351 Ill. App. 3d 148. In Beurksen, the court cited with approval Justice Slater's appellate court dissent in In re M.M.D., which stated that court-ordered grandparent visitation infringed upon the parent's fundamental right to raise his child and could not be retroactively legitimized by reliance on resurrected common law principles. Beurksen, 351 Ill. App. 3d at 150 (relying on In re M.M.D., 344 Ill. App. 3d 343, 349 (2003) (Slater, J., dissenting)).
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. Case law and statutory law constantly evolves -- especially in areas such as grandparent visitation. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is generally limited to McHenry County, Lake County, Kane County and Boone County, Illinois. The Gitlin Law
Firm, P.C. Gitlin Law Firm, P.C. Updated: January 2, 2009
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