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Wickham v. Byrne

April 18, 2002


The opinion of the court was delivered by: Justice Fitzgerald


Docket Nos. 92048, 92135 cons.-Agenda 26-January 2002.

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 750 ILCS 5/607(b)(1), (b)(3) (West 2000).


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 a wish for frequent visitation between J.B. and her mother, Virginia Wickham (Virginia). After Lizabeth's death, Paul agreed to maintain the relationship between Virginia and J.B., often driving J.B. 50 minutes to Virginia's home. Virginia, however, requested more time with J.B. and asked Paul to allow unsupervised overnight visits. Paul offered to drive J.B. for visits when his schedule permitted, but refused to leave J.B. with Virginia unsupervised and overnight. Unable to resolve the conflict, Virginia filed a petition in the circuit court of Cook County for grandparent visitation under section 607(b)(1) of the Act. In her petition, Virginia requested mandatory overnight visitation with J.B. two full weekends a month.

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. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§1, 2. The trial court denied the motion.

At the hearing on Virginia's petition, the court heard testimony 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 visitation. Thus, the court denied overnight visitation, but ordered supervised visitation with J.B. at Paul's home four hours a week. The trial court appointed a child representative and set the case for status in 60 days.

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 appeal. 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 they baby-sat the children. Amy also explained to Rita and Brent that she was uncomfortable with their home environment and the children's exposure to their uncle's lifestyle. Amy agreed to visitation, but she demanded Rita and Brent visit the children at her home, while she was present.

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 for 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 ...

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