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Lulay v. Lulay

October 26, 2000

GAIL LULAY, APPELLEE,
v.
MICHAEL LULAY ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Bilandic

Docket Nos. 87874, 87896 cons.-Agenda 13-March 2000.

Michael Lulay and Kiley Lulay were divorced on March 11, 1996. Pursuant to the judgment for dissolution of marriage, Michael and Kiley have joint custody over their three minor children. On November 30, 1998, Gail Lulay, Michael's mother, filed a petition in the circuit court of Du Page County under section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(1) (West 1998)), seeking visitation with her three grandchildren.

Michael and Kiley filed a motion to dismiss the petition for visitation. See 735 ILCS 5/2-615 (West 1998). The parents argued that section 607(b)(1) should not be interpreted to permit a grandparent to sue his or her own child for visitation with grandchildren; and that if the statute is construed in this manner, the statute is an unconstitutional infringement on their fundamental liberty interest, as parents, in raising their children. The circuit court denied the parents' motion to dismiss. On the parents' request, however, the circuit court certified the following question of law for interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):

"Should section 607 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607) be interpreted to permit the court to conduct a hearing and determine whether it is in the best interest of a child to visit with grandparents who seek such visitation from their own child? If so, is such a statute constitutional?"

The appellate court denied the parents' application for leave to appeal.

The parents filed separate petitions for leave to appeal in this court. See 177 Ill. 2d R. 315. This court granted the petitions for leave to appeal and consolidated the cases. We subsequently permitted the Attorney General of the State of Illinois to intervene to defend the constitutionality of section 607(b)(1). See 134 Ill. 2d R. 19.

STATUTE

Section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act provides:

"(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) whether or not a petition pursuant to this Act has been previously filed or is currently pending 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." 750 ILCS 5/607(b)(1) (West 1998).

ANALYSIS

I. Troxel v. Granville

Recently, the United States Supreme Court, in Troxel v. Granville, 530 U.S. ___, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality opinion), addressed the constitutionality of the State of Washington's nonparental visitation statute. The Washington statute provides: " `Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.' " Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2057-58, quoting Wash. Rev. Code §26.10.160(3) (1994) (section 26.10.160(3)).

In Troxel, the parents, who were never married, had two children. The father regularly brought the children to visit with his parents. The father, however, committed suicide, and, eventually, the mother informed the paternal grandparents that she wished to limit their visitation with the children to one visit per month. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 53, 120 S. Ct. at 2057. The grandparents in Troxel petitioned for visitation under section 26.10.160(3). The trial court found that more extensive visitation with the grandparents was in the children's best interests and therefore ordered the visitation. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2058.

The Washington Court of Appeals reversed the lower court's visitation order on the basis that nonparents lack standing to seek visitation under section 26.10.160(3) unless a custody action is pending. The appellate court reasoned that this limitation on nonparental visitation actions was consistent with the constitutional restrictions on state interference with parents' fundamental liberty interest in raising their children. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2058, quoting In re Troxel, 87 Wash. App. 131, 135, 940 P.2d 698, 700 (1997).

The Supreme Court of Washington disagreed with the appellate court's construction of the statute, holding that the plain language of section 26.10.160(3) gives grandparents standing to seek visitation regardless of whether a custody action is pending. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 55, 120 S. Ct. at 2058, citing In re Smith, 137 Wash. 2d 1, 12, 969 P.2d 21, 26-27 (1998). The Washington Supreme Court held, however, that section 26.10.160(3) is an unconstitutional infringement on the fundamental right of parents to rear their children. Specifically, the court found that the statute is too broad because it allows "any person" to petition for forced visitation with the child "at any time" with the only requirement being that the visitation serve the best interest of the child. Thus, the Washington Supreme Court held, the statute is infirm because it allows the state to interfere with the fundamental right of parents to rear their children without requiring a threshold showing of harm to the child as a result of the discontinued visitation. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 55, 120 S. Ct. at 2058-59, citing In re Smith, 137 Wash. 2d at 15-21, 969 P.2d at 28-31.

The United States Supreme Court, in a plurality opinion, found that section 26.10.160(3), as applied to the facts of the case, is an unconstitutional infringement on the mother's fundamental liberty interest in raising her children. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 57, 120 S. Ct. at 2060-61. The Court began its analysis with a discussion of the important role that grandparents play in the prevalent existence of single-parent households. The Court pointed out that the nationwide enactment of nonparental visitation statutes is certainly due to the states' recognition of the changing realities of the American family. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 55-56, 120 S. Ct. at 2059. Indeed, all 50 states have statutes that provide for grandparent visitation in some form. Troxel, 530 U.S. at ___ n.*, 147 L. Ed. 2d at 61 n.*, 120 S. Ct. at 2064 n.* (citing nonparental visitation statute from each state). In enacting these statutes, states have "sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. *** The extension of statutory rights in this area to persons other than a child's parents, however, comes with an obvious cost. For example, the State's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. *** [T]hese statutes can present questions of constitutional import." Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 56, 120 S. Ct. at 2059.

Turning to the Washington statute, the Court in Troxel focused on its broad scope. Section 26.10.160(3) allows "any person" to petition for visitation "at any time," and the court may grant such visitation rights whenever "visitation may serve the best interest of the child." The statute contains no requirement that a court must give deference to the parent's decision that visitation would not be in the child's best interest. "Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests." (Emphasis in original.) Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 57-58, 120 S. Ct. at 2061.

Next, looking at the facts of the case, the Court noted that the grandparents did not allege, and no court has found, that the mother was an unfit parent. This point is pivotal because a court must presume that fit parents act in the best interests of their children. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061, citing Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979). The Court emphasized that the trial court in the case gave no special weight to the mother's determination of her children's best interests. In fact, a review of the trial court's findings showed that the trial court presumed that the grandparents' request for visitation should be granted unless the children would be adversely affected. Thus, the trial court effectively placed upon the mother the burden of disproving that visitation would be in the best interests of her children. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 58-59, 120 S. Ct. at 2062. The Court also stressed that the grandparents did not allege that the mother sought to cut off visitation entirely. Rather, the mother asked that the duration of the visits between her children and the grandparents be shorter than that requested by the grandparents. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 60, 120 S. Ct. at 2062-63.

As applied in the case before it, the Court in Troxel found that section 26.10.160(3) is an unconstitutional infringement on the mother's fundamental right to make decisions concerning the care, custody, and control of her children. The Court stated that "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a `better' decision could be made." Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 61, 120 S. Ct. at 2064.

The Court concluded that, because it rested its decision on the "sweeping breadth" of section 26.10.160(3) and the application of the statute to the facts in the case, it need not consider whether due process requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a prerequisite to granting visitation. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 61, 120 S. Ct. at 2064. The Court continued: "We do not, and need not, define today the precise scope of the parental due process right in the visitation context. *** Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter." Troxel, 530 U.S. at ___,147 L. Ed. 2d at 61, 120 S. Ct. at 2064. Rather, "the constitutionality of any standard for awarding ...


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