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In re M.M.D.

November 18, 2004

IN RE M.M.D., A MINOR
CHRISTOPHER R. JOHNSON, APPELLANT,
v.
CHRISTOPHER DUNCAN ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Rarick

Docket No. 97537-Agenda 21-May 2004.

At issue in this case is whether Wickham v. Byrne, 199 Ill. 2d 309 (2002), which declared Illinois' grandparent visitation statute to be unconstitutional, invalidated a pre-existing agreement approved by the circuit court of Peoria County granting visitation rights to a child's grandparents. The circuit court held that it did not. On a permissive interlocutory appeal brought under Supreme Court Rule 308 (155 Ill. 2d R. 308), the appellate court reached the same conclusion and affirmed. 344 Ill. App. 3d 345. One justice dissented. We granted leave to appeal from the appellate court's judgment. 177 Ill. 2d R. 315. For the reasons that follow, we now affirm.

The facts are not in dispute. Roxanna L. Duncan died on September 30, 1996, while giving birth to her daughter, M.M.D. M.M.D. survived. Roxanna's parents, Christopher and Sue Duncan (the Duncans) subsequently petitioned the circuit court of Peoria County to be appointed M.M.D.'s guardians. While the guardianship proceedings were pending, the circuit court entered an interim order pursuant to section 11a-4 of the Probate Act of 1975 (755 ILCS 5/11a-4 (West 1996)), granting the Duncans temporary guardianship of M.M.D. and giving them temporary custody of her.

Several months after M.M.D.'s birth, Christopher Johnson brought an action in the circuit court of Peoria County under the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 1996)) to establish that he was her father. In April of 1999, when M.M.D. was approximately 2" years old, the circuit court entered an agreed order declaring that Johnson was M.M.D.'s father. With consent of the parties, Johnson's parentage action was then consolidated with the Duncans' guardianship proceedings, which remained pending. Johnson requested and received the right to visit M.M.D. At the same time, he was ordered to pay 20% of his income to the Duncans for child support.

M.M.D. is not Johnson's only child. According to the record, Johnson is also the father of C.T.J., born three months after M.M.D.; C.J., born March 11, 1991; C.K.J., born July 18, 1990; B.F., born March 3, 1986; and Nakeitha Tyler, born May 9, 1983. M.M.D. was likewise not Roxanna's only child. Roxanna also had a son, I.N.D., by a man named Gaylord Ford. Following Roxanna's death, the court granted temporary guardianship of I.N.D. to Ford.

C.T.J., C.J., and C.K.J. all resided with Johnson and his wife, Roshawn. The family's financial circumstances were strained. According to a financial affidavit filed by Johnson in this matter, his monthly income was less than $2,300. His monthly expenses, including health insurance, housing, food, child-care and other costs, and payments stemming from bankruptcy exceeded $7,400.

Faced with this imbalance, Johnson failed to make the child support payments to the Duncans ordered by the circuit court. On Christopher Duncan's motion, the court ordered Johnson to show cause why he should not be held in contempt of court. Johnson's attorneys then sought and obtained leave to withdraw from the case. The reason for their withdrawal was that Johnson had not paid them.

Johnson retained replacement counsel. In April of 2000, Johnson's new lawyer filed a petition on his behalf asking that he be awarded custody of M.M.D. and that the Duncans' guardianship of her be terminated. Johnson's motion was opposed by the Duncans, who argued that permanent custody of M.M.D. should be awarded to them.

The litigation continued for over a year. Finally, on July 17, 2001, Johnson and the Duncans reached an agreement under which the Duncans' temporary guardianship of M.M.D. was to terminate and Johnson was to obtain permanent custody of the child. The agreement further provided that the Duncans were to receive specific and detailed visitation rights, telephone access to the child, information about the child's education and medical care, and authorization to speak with the child's teachers, school personnel, counselors and physicians regarding her progress and circumstances. This agreement was executed by the parties, their attorneys and the child's guardian ad litem, and incorporated into an order filed by the court.

In October of 2001, the circuit court found that Johnson owed Christopher Duncan $1,961.61 in arrearages and ordered him to pay that sum in installments of $400 per month. Less that two months after that, Christopher Duncan petitioned for a rule to show cause why Johnson should not be held in contempt for violating the terms of the July 17, 2001, visitation agreement incorporated into the order filed by the circuit court.

An order to show cause was entered by the circuit court on December 6, 2001. On April 18, 2002, this court filed its opinion in Wickham v. Byrne, 199 Ill. 2d 309 (2002). Wickham involved two consolidated cases in which a child had lost a parent and the deceased parent's parents (the child's grandparents) were granted visitation by the court, over the objection of the surviving parent, pursuant to the so-called grandparent visitation statute set forth in section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b) (West 2000)).

Section 607(b) stated, in pertinent part:

"(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 ...


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