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Lingwall v. Hoener

OPINION FILED SEPTEMBER 20, 1985.

JUNE BULLINGTON LINGWALL, APPELLEE,

v.

ALTHEA EILEEN HOENER ET AL., APPELLANTS. — WILLIAM ROTH ET AL., APPELLANTS,

v.

RONALD PODSCHWEIDT ET AL., APPELLEES.



No. 60458. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Pike County, the Hon. Cecil J. Burrows, Judge, presiding.

No. 60703. — Appeal from the Circuit Court of Kane JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Marcia B. Gevers, of Getty & Gevers, of Dolton, for appellants.

Donald C. Hudson and Marc Webbles, of Geneva, for appellees.

This opinion involves three cases that have been consolidated for the purpose of this appeal. In cause No. 60458, petitioner June Bullington Lingwall, the natural paternal grandmother of Michelle Hoener, filed a petition in the circuit court of Pike County pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 607(b)) (Marriage Act), seeking visitation with Michelle. The respondents, Althea Eileen Hoener, Michelle's natural mother, and her husband, Wayne Hoener, Michelle's adoptive father, opposed the petition on the ground that all rights of Michelle's natural father and of those related to Michelle through him had been terminated as a result of the adoption proceeding. After an evidentiary hearing, the circuit court granted the petitioner limited visitation with Michelle. The appellate court affirmed. 124 Ill. App.3d 986.

In cause No. 60703, petitioners William and Carol Roth, the natural paternal grandparents of Christina and Jeffery Podschweidt, filed a similar petition in the circuit court of Kane County. Their petition for visitation with Christina and Jeffery was opposed by respondents Nancy, the children's mother, and her new husband, Ronald Podschweidt, who had adopted the children. Without a hearing, the circuit court granted the respondents' motion to dismiss the petition.

Petitioner Maxine Neier, the natural paternal grandmother of Sharine Carlson, also filed a petition in the circuit court of Kane County for grandparental visitation after Sharine had been adopted by her mother's new husband. Respondents Patricia and Kenneth Carlson filed no response to Mrs. Neier's petition and no motion to dismiss. However, the circuit court dismissed the petition on its own motion without a hearing. The Roth and Neier petitions were consolidated in the appellate court, and the petitioners then filed a motion for a direct appeal to this court pursuant to Rule 302(b) (87 Ill.2d R. 302(b)). The motion was allowed, and we have consolidated the direct appeal in cause No. 60703 with cause No. 60458.

The issue presented for review is the narrow question of whether visitation privileges may be granted to a grandparent under section 607(b) of the Marriage Act when the parent through whom the grandparent is related to the child has been deprived of his parental rights as a result of the child's adoption by the other natural parent and that parent's new spouse. Section 607 provides in pertinent part:

"(b) The court may grant reasonable visitation privileges to a grandparent or great-grandparent of any minor child upon the grandparents' or great-grandparents' petition to the court, 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. Further, the court, pursuant to this subsection, may grant reasonable visitation privileges to a grandparent or great-grandparent whose child has died where the court determines that it is in the best interests and welfare of the child." Ill. Rev. Stat. 1983, ch. 40, par. 607(b).

It is clear that section 607(b) gives grandparents the right to seek visitation with their grandchildren pursuant to a petition for the dissolution of the parents' marriage, and that the court may grant such visitation if it is in the children's best interest and welfare. It is also clear that this section, which was added to the Marriage Act and became effective as amended on September 17, 1982, modified the prior common law rule that grandparents had no visitation rights absent a showing of special circumstances. Chodzko v. Chodzko (1976), 66 Ill.2d 28.

However, the respondents argue that when, as in the present cases, a child is adopted by one of the natural parents and that parent's new spouse following the dissolution of a marriage, the Illinois Adoption Act governs the issue of visitation rather than the Marriage Act. The Adoption Act provides in pertinent part:

"After the entry either of an order terminating parental rights or the entry of an order of adoption, the natural parents of a child sought to be adopted shall be relieved of all parental responsibility for such child and shall be deprived of all legal rights as respects the child, and the child shall be free from all obligations of maintenance and obedience as respects such natural parents. (Ill. Rev. Stat. 1983, ch. 40, par. 1521.)

Because this statute terminates the rights of the natural parent in the adopted child, the respondents argue, any derivative rights claimed by the grandparents are also terminated. The respondents attempt to bolster this argument by citing a provision of the Probate Act of 1975 as amended (Probate Act), which provides in pertinent part:

"Sec. 11-7.1. Whenever both natural or adoptive parents of a minor are deceased and the minor has not been subsequently adopted, visitation rights shall be granted to the grandparents of the minor who are the parents of the minor's legal parents unless it is shown that such visitation would be detrimental to the best ...


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