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In re M.M.D.

November 20, 2003


Appeal from the Circuit Court of the 10th Judicial Circuit Peoria County, Illinois Nos. 96-F-543 & 96-P-617 Honorable Chris L. Fredericksen Judge, Presiding

The opinion of the court was delivered by: Justice Holdridge


Christopher Johnson filed a petition in the Peoria County circuit court seeking termination (or alternatively, modification) of an order granting visitation rights to his child's maternal grandparents, Christopher and Sue Duncan. The judge denied his petition and also denied his subsequent motion to reconsider. Johnson filed this appeal claiming the judge erred because the circuit court lacked jurisdiction to enforce the grandparent visitation order. He asserts that the recent holding in Wickham v. Byrne, 199 Ill. 2d 309 (2002) (declaring the grandparent visitation statute unconstitutional), voided the visitation order as a matter of law. We affirm the circuit court's judgment.


As early as the 1970s Illinois common law provided visitation rights to grandparents upon a showing of "special circumstances." See Chodzko v. Chodzko, 66 Ill. 2d 28 (1976); see also Hawkins v. Hawkins, 102 Ill. App. 3d 1037 (1981). The legislature subsequently enacted subsections 607(b)(1) and (3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/607(b)(1) and (3) (West 2000)), authorizing courts to order grandparent visitation upon a finding that such visitation "is in the best interests and welfare of the child." 750 ILCS 5/607(b)(1) (West 2000).

Johnson's wife died while giving birth to M.M.D. on September 30, 1996. M.M.D. subsequently resided in foster care with the Duncans until July 17, 2001. On that date, the circuit court entered an order (1) granting Johnson full and permanent custody of M.M.D., and (2) adopting a written agreement between Johnson and the Duncans regarding the Duncans' visitation rights. Under the visitation portion of the order, the Duncans received visitation rights every Wednesday evening and every other weekend. They were also authorized, inter alia, to "inspect [M.M.D.'s] school and medical records and to communicate with teachers, school personnel, counselors, and physicians to discuss [M.M.D.'s] standing and progress." Additionally, Johnson was required to "continuously advise" the Duncans of M.M.D.'s progress at school and inform them "as soon as possible" of any illness or injury she suffered.

In 2001 this court held that subsection 607(b)(1) of the Act was unconstitutional--as applied to a particular mother--because it interfered with the mother's fundamental right to make decisions about the care, custody, and control of her child. See Langman v. Langman, 325 Ill. App. 3d 101 (2001). *fn1 Despite the unconstitutionality of the statute, the child's grandparents argued that their visitation request should be upheld under the pre-existing common law. This court disagreed, stating:

"Rita and Brent [the grandparents] have cited no authority for the proposition that grandparents whose child has died and who have been granted limited visitation rights to their grandchildren by the surviving parent may be awarded additional visitation rights as a `special circumstance.' *** Therefore, we will not authorize this visitation order under common law." Langman, 325 Ill. App. 3d at 107-08.

In 2002 the Illinois Supreme Court held that subsections 607(b)(1) and (3) of the Act are unconstitutional on their face. See Wickham, 199 Ill. 2d 309. The court explained that decisions made by fit parents are constitutionally presumed to serve the best interests of their children. Thus, subsections 607(b)(1) and (3) violate parents' due process rights by allowing circuit courts to displace parental decisions with judges' opinions about the best interests of children. According to the court, "[s]tate interference with fundamental parental childrearing rights is justified [only] in limited instances to protect the health, safety, and welfare of children." Wickham, 199 Ill. 2d at 317.

After Wickham was decided, Johnson filed a petition in the circuit court seeking termination (or alternatively, modification) of the Duncans' visitation rights. The judge reviewed Wickham and other similar cases and observed that Illinois' appellate courts had not invalidated the pre-existing common law regarding grandparent visitation. He also noted that the visitation order did not specify whether the Duncans' rights were based on statutory law or common law. Since common law precedent still existed for grandparent visitation, the judge denied Johnson's petition to terminate the Duncans' rights. Rather than outright termination, the judge said the visitation agreement was "subject to modification just as any other visitation agreement is in Illinois."

Johnson filed a motion to reconsider, which the judge denied. The judge reiterated his conclusion that since the common law had not been repealed, it still provided a "right of [grandparent] visitation under certain special circumstances." At Johnson's request, the judge certified the following question for appellate review:

"[W]hether this Court [the circuit court] has jurisdiction to enforce a visitation order entered on July 17, 2001 based on common law jurisdiction, or whether, due to the courts' recent decisions of Wickham v. Byrne *** and Langman v. Langman, the visitation agreement is now void as a matter of law and therefore terminated."

In his application for leave to appeal, Johnson specifically challenged the judge's refusal to terminate the Duncans' visitation rights. No issue regarding ...

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