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Flynn v. Henkel

November 29, 2007

CINDY FLYNN, APPELLEE,
v.
ALICE HENKEL, APPELLANT.



JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Burke concurred in the judgment and opinion.

OPINION

Alice Henkel is a single mother raising a minor child, E.H., who was born on May 27, 2003. Cory Flynn is the father of E.H. Alice and Cory were never married and never lived together. Alice and E.H. live with E.H.'s maternal grandparents. Cindy Flynn is Cory's mother and the paternal grandmother of E.H.

Cindy filed a petition in the circuit court of Lee County for grandparent visitation against Alice in December 2005 under section 607(a--5) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(a--5) (West 2006)), commonly called the grandparents visitation statute. The court held a hearing on the petition on April 21, 2006. Following the hearing, the court allowed the visitation, providing for three hours of unsupervised visitation on the second Saturday of each month with certain restrictions. Alice appealed and the appellate court affirmed. 369 Ill. App. 3d 328. We granted leave to appeal (210 Ill. 2d R. 315) and reverse the appellate court and the trial court for the reasons that follow.

BACKGROUND

The hearing on Cindy's petition was held on April 21, 2006, pursuant to the grandparent visitation statute, which in pertinent part provides:

"(a--5)(1) Except as otherwise provided in this subsection (a--5), any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent and at least one of the following conditions exists:

(E) the child is born out of wedlock, the parents are not living together, and the petitioner is a paternal grandparent, great-grandparent, or sibling, and the paternity has been established by a court of competent jurisdiction. ***

(3) In making a determination under this subsection (a--5), there is a rebuttable presumption that a fit parent's actions and decisions regarding grandparent, great-grandparent, or sibling visitation are not harmful to the child's mental, physical, or emotional health. The burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation times are harmful to the child's mental, physical, or emotional health." 750 ILCS 5/607(a--5) (West 2006).

All the evidence in this case was presented through the testimony of Alice, Cindy and E.H.'s maternal grandmother at that hearing. Cindy first learned of E.H.'s birth one month after he was born. She and her husband visited E.H. at the home of E.H.'s maternal grandparents that same night. The parties agreed to visit once a week and, after a few weeks, arranged to visit twice a month for two hours. Although the record is not clear as to when Cory went to prison or if he was in prison at the time of E.H.'s birth, he was released from prison in July of 2003, at which time Alice would not allow Cory to see E.H. Alice told Cindy that she and her husband could see E.H., if they kept Cory out of E.H.'s life. Cindy and her husband abided by this condition. Cory later filed a petition to obtain visitation with his son. Cindy testified that "when Alice got her papers from the court, she called me in a rage. She cussed me out and told me that I lost my visitation with [E.H.]" Cory was later granted supervised visitation at Sinnissippi, a community-based behavioral health-care center. Cindy testified that the visitation order stated that Cindy could not see E.H. without Cory. (The petition, order and report of proceedings in Cory's visitation proceeding are not part of the record in this case.) Eventually, Cory and Alice agreed to have the supervised visits at Alice's house. Cindy attended the visitations at Sinnisssippi, but she did not attend the visitations at Alice's house.

Cory left for California in September of 2005. Cindy contacted Alice and requested visitation with E.H. without Cory. Alice refused this request and Cindy filed her petition for visitation in December 2005. There was no visitation between Cindy and E.H. from May 2005 until Cindy filed her petition. After the petition for visitation was filed, Alice and Cindy agreed to a trial visitation period that lasted for two visits each in January and in February 2006. When no further agreement could be reached, the visitation petition was set for hearing and, as previously noted, was heard on April 21, 2006. No motion attacking the sufficiency of the allegations in the petition and no answer to the petition was ever filed by Alice.

At the close of the evidence and arguments, the trial court stated:

"Okay. Based on the testimony presented the Court finds that the petitioner has met her burden. The harm in this case is not something that you can put in the sense of a direct emotional harm. It's a direct denial of an opportunity that every grandparent according to this statute is entitled to." The trial court then specifically addressed each of the statutory factors enumerated in sections 607(a--5)(4)(A) through (a--5)(4)(J) in deciding in favor of visitation.

In its written order granting visitation, the trial court did not make any specific findings as to how Cindy had overcome the statutory presumption that Alice's decisions regarding grandparent visitation were not ...


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