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In re Marriage of Mehring

August 13, 2001


Appeal from the Circuit Court of Madison County. No. 96-D-905 Honorable Barbara Crowder, Judge, presiding

The opinion of the court was delivered by: Presiding Justice Chapman


This case began with the basic question of whether a nine-year-old girl should be allowed to visit her paternal grandmother. The broader question presented is whether the grandparental-visitation statute (750 ILCS 5/607(b)(1) (West 2000)) is unconstitutional as violative of a parent's liberty rights guaranteed by the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution. We will first examine the constitutional question.

"War is much too serious to leave to the generals." *fn1 Clemenceau's challenge should not have gone unanswered. If Napoleon were alive, he might have responded, "Right, it's too serious for us, until the time for killing comes." The dispute over choosing decision makers for nations is echoed on a smaller, but no less significant scale, in choosing decision makers for family disputes.

Few would argue that the wars-are-too-important epigram could be analogized in reduced scope to "Families are too important to be left to the courts." Even judges would generally agree with this bit of wisdom when it is applied to most families at most times. The problem, however, is not with the millions of parental decisions made each day, decisions that are never criticized, questioned, or even examined by any outside authority, let alone the judicial system. The problem arises with those relatively limited number of decisions that courts make with much less exuberance than is manifested in Napoleon's hypothetical response.

Napoleon's response is a recognition of the fact that when diplomacy has failed and a dispute still exists that must be resolved, the "time for killing" has come and those who are skilled in the art of war must be given the right to decide. Similarly, in families in which the normal decision-making process has failed for whatever reason (death and divorce are but two), courts are called upon to resolve the dispute. Some generals, like Patton, may relish the chance and even revel in the bloody battles they direct. Most do not. Some judges may feel they are actually in a superior position to make life-changing decisions involving family choices. Most do not. The similarity between generals and judges in this context is that, whether they want to make the decisions or not, they must. The reasons for generals becoming the ultimate decision makers are far beyond the scope of this opinion, but the reasons for judges being called upon to resolve family disputes bear further examination.

Adam and Eve's children had no grandparents, and although Cain and Abel's relationship with each other left a lot to be desired, there is no indication that grandparental visitation was a problem at that time. Nor was it a problem for the next several thousand years. Why is this true? Could it be that, for most of that time, families included grandparents as a part of the basic family unit? In both tribal units and in subsistence farming societies, this would appear to be true, and if it is, it is also true that the extended family has been the norm for thousands of generations longer than the nuclear-family model that is presented as the norm today. See K. Franklin, "A Family Like Any Other Family:" Alternative Methods of Defining Family Law, 18 N.Y.U. Rev. L. & Soc. Change 1027 (1990/1991) (an interesting discussion on the development of the nuclear family).

Even though the nuclear family may be of relatively recent vintage, it has been accepted as the norm for more than 100 years. Under the nuclear-family model, parents have decision-making powers over most elements of their children's lives. The decision-making power has been recognized as a fundamental right. See Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000). Although it is a fundamental right, it is not an absolute one. Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944).

The States' interference with parental powers begins even before the nuclear family is formed. For example, Illinois has prohibited bigamy for many years. 720 ILCS 5/11-12 (West 2000). The States' interference with parental power over children begins with each child's birth. E.g., 410 ILCS 240/1 (West 2000) (requiring testing for phenylketonuria at birth); 410 ILCS 320/1 (West 2000) (requiring testing for syphilis). The interference continues during the child's early years. E.g., 410 ILCS 315/2 (West 2000) (requiring immunization of all children for diphtheria, pertussis, and tetanus); 410 ILCS 205/1 et seq. (West 2000) (requiring children to receive hearing and visual examinations). In fact, the State's interference continues throughout the child's life. E.g., 105 ILCS 5/26-1 et seq. (West 2000) (requiring parents to keep their children in school); 820 ILCS 205/1 et seq. (West 2000) (prohibiting parents from putting their children into the labor force). This list of civil interferences is not the only State action that restricts parental power. The State also has criminal sanctions for certain conduct. E.g., 720 ILCS 5/11-11 (West 2000) (prohibiting incest). Although all the above interferences have a statutory basis, the State has also intervened through its judicial arm in cases involving necessary medical care that parents have refused for religious reasons. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952) (requiring blood transfusions for a child over the parents' objections). One drastic interference with parental powers is the removal of children from the home and their placement with foster parents because of their natural parents' neglect or mistreatment. See 705 ILCS 405/2-5 (West 2000). The ultimate interference is the termination of parental rights. See 750 ILCS 50/1 et seq. (West 2000).

The existence of the foregoing list of sanctioned State interferences with parental rights establishes that parents' power over their children is far from absolute and implicitly raises this question: If all these interferences are allowed, what is the problem with the grandparental-visitation statute?

The grandparental-visitation right provides:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent *** of any minor child *** if the court determines that it is in the best interests and welfare of the child ***. *** [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." 750 ILCS 5/607(b)(1) (West 2000).

This court ruled on a constitutional challenge to this statute in West v. West, 294 Ill. App. 3d 356, 689 N.E.2d 1215 (1998). West reviewed the statutory provisions, along with the cases that had allowed visitation before the statute was passed, and concluded that the statute was both a codification and an expansion of grandparents' visitation rights. In addition, West held that the statute was constitutional because it was narrowly tailored to achieve the goal of maintaining and promoting a grandparent-grandchild relationship, a matter in which the State had a compelling interest.

Why then is this statute being challenged again? Because, the appellant replies, in the interim the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), and the Illinois Supreme Court decided Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000). The first case held Washington State's grandparental-visitation statute unconstitutional. The second case held the Illinois statute unconstitutional under the particular circumstances of that case.

Troxel is easily distinguishable from this case because of the differences between the Washington statute and the Illinois statute. As this court indicated in West, the Illinois statute is narrowly drawn. In contrast, the Washington statute allowed a petition for visitation to be filed by any person at any time, provisions that the Supreme Court found "breathtakingly broad." Troxel, 530 U.S. at 67, 147 L. Ed. 2d 49, 120 S. Ct. at 2061. In addition, the Supreme Court recognized that all 50 states had passed grandparental-visitation-rights statutes, and it did not invalidate all of them. The appellant contends, however, that Troxel controls for three reasons unrelated to the statutory differences.

First, the appellant contends that Troxel mandates that the Illinois statute require a finding of harm to the child before grandparental visitation can be ordered. This is quite simply not the case. In fact, the Troxel court specifically avoided that question:

"[W]e do not consider *** whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation." Troxel, 530 U.S. at 73, 147 L. Ed. 2d 49, 120 S. Ct. at 2064.

Second, the appellant argues that Troxel required a finding of the unfitness of the parents before any court could order grandparental visitation over the parents' objection and that since the Illinois statute does not make parental unfitness a prerequisite for grandparental visitation, it is constitutionally flawed.

The appellant's third contention is that the best-interests-of-the-child requirement is too vague and that since the Illinois statute uses that same standard, it is also unconstitutionally vague.

The appellant's second argument is based on the following language from Troxel:

"First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children." Troxel, 530 U.S. at 68, 147 L. Ed. 2d 49, 120 S. Ct. at 2061.

There are several problems with the appellant's reliance upon this "fitness" test. First, the Troxel ruling was not based solely on this factor. Troxel was based on the court's concern about the broadness of the statute, the fitness presumption, the fact that visitation had not been entirely cut off by the parent, and the fact that the trial court had apparently required the parent to prove that visitation would not be in the children's best interests. It is only after discussing all those elements that the court held as follows:

"[T]he combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody, and control of her two daughters." (Emphasis added.) Troxel, 530 U.S. at 72, 147 L. Ed. 2d 49, 120 S. Ct. at 2063.

The second problem with the appellant's reliance on the Troxel test is that the test itself is logically flawed. The Troxel fitness test is saying:

• All fit parents always make decisions that are in the best interests of their children.

• Granville is a fit parent.

• Therefore, Granville always makes decisions that are in the best interests of her children.

The Supreme Court suggests that in order for grandparents to prevail on visitation petitions, they must first attack the minor premise of the syllogism and establish that the parent is not fit. That, of course, would be one way to proceed, and if it were a successful attack under Illinois law, the grandparents might not only obtain visitation but also custody, since in Illinois unfit parents are subject to having their parental rights terminated (750 ILCS 50/1 (West 2000)).

However, an attack on the minor premise is not the only way to proceed. The problem with the Troxel fitness test is that the major premise claims too much; it is simply not true that fit parents always make decisions that are in the best interests of their children. A few examples should be sufficient to dispel the truth of the major premise. Every day, parents who are good and honest and concerned parents do some of the following things. They eat, drink, or smoke too much and, therefore, lessen the likelihood that they will be alive and well throughout their children's lives. On occasion, they drive too fast with children in the car, they allow children to play unsupervised, they fail to save enough for college, they discipline the children too much or too little, they fail to make it to their son's baseball game or their daughter's soccer game, or they do not help with the homework or they help too much with the homework. Some of these decisions are relatively trivial, but they are all decisions that affect the best interests of the children, and most parents at some time have made some decisions that were not in the best interests of their children.

These mistakes do not mean the parents are unfit; they mean they are human. And just as fit parents can make mistakes in any of the examples given, they can also make mistakes when it comes to decisions about grandparental visitation. To give an example that is not intended to depict the facts in this case, consider the following situation. A young couple marry and have a little girl, but when the child is two years old, they divorce. The mother is awarded custody, and the father has visitation on alternate weekends. It is necessary for the mother to work, and rather than place the baby in a day-care facility, she asks her mother-in-law to care for the child from 8 a.m. to 5:30 p.m. The mother-in-law is not employed outside her home, and she is happy to watch her only grandchild, so she agrees. When the child reaches school age, the mother's employment requires her to work evenings, so the schedule changes. She drops her daughter off at school at 8 a.m., and the grandmother picks the child up at 3 p.m. and keeps her during the evening hours and occasionally overnight. The mother either picks the child up at the end of her shift at midnight or comes by in the morning to pick her up for school. This schedule, although not ideal, is workable and continues to be used for five or six years. The mother is a good and honest and caring woman; the grandmother is the same. They both love the child, and the child loves both of them. Just before the child begins junior high school, things happen. The father dies, and perhaps the mother and her mother-in-law have an argument, or perhaps the mother-in-law feels she is too old to baby-sit. Whatever the reason and whatever the source of any fault, the mother decides that the grandmother will not be allowed to see the child. Assume, if one has to make such an assumption, that this decision is devastating to the child, who requires significant counseling as a result of her mother's decision. This young girl has spent most of her waking hours not with her parents, but with her grandmother. Her grandmother has been the primary caretaker for her, feeding and clothing ...

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