July 6, 2001

No. 3--00--0684

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The respondent, Amy Langman, appeals from the judgment ofthe circuit court of Kankakee County granting the petitioners,Brent and Rita Langman, visitation rights to their grandchildren.On appeal, Rita argues: (1) section 607(b)(1) of the IllinoisMarriage and Dissolution of Marriage Act (Act) isunconstitutional as applied in this case (750 ILCS 5/607(b)(1)(West 1998)); (2) section 607(b)(1) of the Act isunconstitutional on its face (750 ILCS 5/607(b)(1) (West 1998));and (3) the trial court's visitation schedule was against themanifest weight of the evidence. We hold that section 607(b)(1)of the Act is unconstitutional as applied in this case andreverse the trial court's judgment.

The record reflects that Amy and Rhett Langman were marriedand had two children, T.L., born September 3, 1995, and P.L.,born June 25, 1998. Rhett died in an accident on September 20,1998. After Rhett's death, Amy had disagreements with Rita andBrent, Rhett's parents, regarding the amount of time they wouldbe allowed to spend with her children. Amy wanted onlysupervised visitation. Rita and Brent wanted unsupervisedvisitation.

On May 21, 1999, Rita and Brent filed a petition to setgrandparent visitation. At the hearing on the petition,Elizabeth Langman testified that she was the children's great-grandmother and had resided with Brent and Rita for the last twoyears. According to Elizabeth, before Rhett's death, he wouldbring T.L. over to the house once a week for visits. She saidthat Rita and Brent had a loving relationship with T.L. She hadobserved T.L. shower with his grandfather on more than oneoccasion, but she did not find that to be improper.

Amy testified as an adverse witness. She said that she andthe children had moved six hours away from Rita and Brent toColumbia, Missouri, for a fresh start. She said that when Rhettwas alive, he used to take T.L. over to Rita and Brent's once aweek. T.L. used to spend 10 hours a week at Rita and Brent'shome until Amy learned that Brent was showering naked with T.L. Brent testified that before Rhett died, he would see hisgrandchildren about every two weeks. He had a good relationshipwith Rhett and they were in business together. He and Rita wouldvacation with Rhett, Amy, and the children at least once a year. After Rhett died, they would see the children on Tuesday nightswhile Amy bowled. He had not heard from the children or seenthem since the previous Halloween. Brent said that he and Ritaonly wanted their own time with their grandchildren, but Brentadmitted that he wanted Amy to bring the children to his home andleave them there without Amy being present.

Rita Langman testified that T.L. had just turned three andP.L. was three months old when her son died. Before Rhett died,she saw T.L. two to three times a month; she and Brent babysatfor T.L. and P.L. She had a very close relationship with T.L. They used to all vacation together. After Rhett died, theirrelationship with Amy became strained. She asked Amy once ifthere was a problem, and Amy told her that she and Brent wouldnot do what she asked them to do when they babysat. Amy askedher to telephone her ahead of time if she wanted to visit thechildren. Rita said she then began to call first, but that sheseldom got a phone call back. She wanted to see hergrandchildren more often.

On cross-examination, Rita said that Amy was doing a goodjob raising the children. She knew that Amy criticized herbecause of the "shower incident." Rita said that they had twobathtubs in their house, but T.L. wanted to shower, so Brentshowered with him. This upset Amy.

Brent was recalled as a witness. He testified that he raisedtwo children, Brent and Rhett. His son Brent visits the houseonce or twice a month. When he visits, he stays overnight withhis friend, Ray Bonovini. Brent and Ray had been in the homewhen T.L. and P.L. visited, but they never stayed overnight onthe same night. When questioned about showering with T.L., Brentadmitted that he had showered with T.L. about six times. He saidthat Rhett let T.L. shower with him and that Amy never objected.

Amy testified on her own behalf that she had good reasonsfor not wanting the children to go to Rita and Brent's houseunsupervised. She said that she told Rita that she did not wantT.L. showering with Brent, but that it continued to happen. Shewas concerned that her brother-in-law was a homosexual. She saidthat Rita and Brent engage in "family feuds" with other familymembers and do not talk for months to those relatives. Amy didnot want her children to be part of that environment.

Upon questioning by the court, Amy testified that she hadmoved to Missouri because she and her children needed a freshstart and a place they could be happy. She wanted any visitationto be supervised by her and at her home. She did not wantovernight visits, but noted that Rita and Brent had family in St.Louis.

After hearing all the evidence, the trial court issued itsorder with an accompanying memorandum. In its memorandum, thecourt noted that all the parties were responsible, moral andcaring people. The court acknowledged that Amy did not object tovisitation, but had requested supervised visitation. The trialjudge noted that it could not do more than balance the rights ofthe parent and grandparents. In reviewing the facts, the courtsaid that it did not believe Amy's concerns were justifiedregarding Brent showering with T.L. or associating with hishomosexual uncle. It then set up a visitation schedule whichwould eventually allow Rita and Brent unsupervised visitation forone full weekend each month.

On appeal, Amy first argues that section 607(b)(1) of theIllinois Marriage and Dissolution of Marriage Act (Act) isunconstitutional as applied in this case. 750 ILCS 5/607(b)(1)(West 1998). The Act provides in part:

"(b)(1) The court may grant reasonablevisitation privileges to a grandparent,great-grandparent, or sibling of any minorchild upon petition to the court by thegrandparents or great-grandparents or onbehalf of the sibling, with notice to theparties required to be notified under Section601 of this Act, if the court determines thatit is in the best interests and welfare ofthe child, and may issue any necessary ordersto enforce such visitation privileges. Except as provided in paragraph (2) of thissubsection (b), a petition for visitationprivileges may be filed under this paragraph(1) whether or not a petition pursuant tothis Act has been previously filed or iscurrently pending if one or more of thefollowing circumstances exist:

(A) the parents are not currentlycohabitating on a permanent or anindefinite basis; (B) one of the parents has been absentfrom the marital abode for more thanonce month without the spouse knowinghis or her whereabouts; (C) one of the parents is deceased; (D) one of the parents joins in thepetition with the grandparents, great-grandparents, or sibling; or (E) a sibling is in State custody." 750 ILCS 5/607(b)(1) (West 1998).

Parents have a fundamental constitutional right to makedecisions concerning the care, custody, and control of theirchildren. Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120S.Ct. 2054 (2000). By allowing the state to override thedecisions of parents regarding the upbringing of their children,section 607(b)(1) of the Act significantly interferes with thefundamental rights of parents. Lulay v. Lulay, 193 Ill. 2d 455,739 N.E.2d 521 (2000). Therefore, the constitutionality ofsection 607(b)(1) of the Act must be evaluated under a strictscrutiny analysis. Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532. To withstand the strict scrutiny test, a statute must serve acompelling state interest, and the statute must be narrowlytailored to serve the compelling interest. Lulay, 193 Ill. 2d at476, 739 N.E.2d at 532. Both the United States Supreme Court andour supreme court have analyzed various of the following factorsto determine whether a grandparent visitation statute isunconstitutional as applied to the facts of a particular case:(1) who may bring the action; (2) whether the grandparentsalleged, or the trial court found, that the parent was unfit; (3)whether the grandparents alleged that the parent sought toterminate visitation entirely; and (4) whether the trial courtgave any special weight to the parent's determination of thechildren's best interests. See Troxel v. Granville, 530 U.S. 57,147 L.Ed.2d 49, 120 S.Ct. 2054 (2000); Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 521 (2000).

We initially note that Brent and Rita argue that Amy haswaived the issue of the constitutionality of section 607(b)(1) ofthe Act because she did not raise it before the trial court. 750ILCS 5/606 (b)(1) (West 1998). However, waiver is a limitationon the parties and not on the courts. A reviewing court mayignore the waiver rule in order to achieve a just result. In reJanet S., 305 Ill. App. 3d 318, 712 N.E.2d 422 (1999). AlthoughAmy did not raise the constitutionality of the statute below, thetrial court did raise it and ruled on it. Therefore, in theinterest of justice, we will review this issue.

Section 607(b)(1) is more narrow than the statute in Troxelv. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000). In that case, the United States Supreme Court reviewed aWashington statute which permitted any party to petition thecourt for visitation rights of minor children and for the courtto award such rights if it found them to be in the best interestof the children. Troxel, 530 U.S. at 57, 147 L.Ed.2d at 49, 120S. Ct. at 2054. In our case, section 607(b)(1) of the Act onlyauthorizes grandparents, great-grandparents, or siblings topetition the court for such rights. 750 ILCS 5/607(b)(1) (West1998). Therefore, the first factor is not problematic and thestatute is not over broad.

However, we find that the remaining three factors makesection 607(b)(1) unconstitutional as applied in this case. First, neither the grandparents nor the trial court alleged thatAmy was an unfit parent. To the contrary, Rita believed that Amywas a good mother, and the trial court described all of theparties as responsible, moral and caring people. As our supremecourt has recently noted, this issue is pivotal because a courtmust presume that a fit parent acts in the best interests of herchildren. Lulay, 193 Ill. 2d at 462, 739 N.E.2d at 525, citingTroxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054(2000).

Next, Rita and Brent did not allege that Amy sought toterminate their visitation with T.L. and P.L. entirely. Amysimply sought to limit their visitation to supervised visits inher home.

Finally, the trial court did not give any special weight toAmy's determination of the her children's best interests. It isclear from the court's memorandum order that it disagreed withAmy's decisions about T.L. showering with Brent or associatingwith a homosexual uncle. The court stated:

"She objected to her young son, then littlemore than a toddler, showering with hisgrandfather in a large open shower on thefarm. She also apparently objects to thechildren being with their uncle who is ahomosexual. No evidence was produced thatthe uncle ever placed either child in anydanger, merely that he was a homosexual andhad a partner. As to the showers withgrandfather, no evidence was presented thatthese acts frightened, upset or endangeredthe child, [T.L.]."

Again, even if the court disagreed with Amy on these issues, itis Amy's fundamental right as a parent to determine with whom herchildren may bathe and also with whom they may associate. SeeTroxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054(2000) (parents have a fundamental constitutional right to makedecisions concerning the care, custody, and control of theirchildren). The trial court did not give any special weight toAmy's determination, and specifically noted that its task was tobalance the right of the parent and the grandparents in thiscase.

For these reasons, we hold that the facts in this case donot warrant the state's interference with a parent's decisionregarding who may have visitation with her children. Section607(b)(1) of the Act, as interpreted and applied to this case,does not serve a compelling state interest and, therefore, doesnot satisfy the strict scrutiny test. Accordingly, section607(b)(1) of the Act, as applied to this case, is anunconstitutional infringement on Amy's fundamental libertyinterest in raising her children.

Next, Amy argues that section 607(b)(1) of the Act isfacially unconstitutional. 750 ILCS 5/607(b)(1) (West 1998). Because we hold that section 607(b)(1) of the Act as applied tothis case is unconstitutional, we need not address this argument. See Lulay v. Lulay, 193 Ill. 2d at 480, 739 N.E.2d at 534. Ourholding is also dispositive of her third issue, that the trialcourt's visitation schedule was against the manifest weight ofthe evidence.

Brent and Rita argue that even if section 607(b)(1) of theAct is unconstitutional, the visitation order is authorized underIllinois common law. To support their contention, they cite tothe factually analogous case of Boyles v. Boyles, 14 Ill. App. 3d602, 302 N.E.2d 199 (1973).

Prior to the legislature's enactment of section 607(b)(1),Illinois common law provided visitation rights to grandparents ifthere was a showing of "special circumstances." Chodzko v.Chodzko, 66 Ill. 2d 28, 360 N.E.2d 60 (1976). Rita and Brenthave cited no authority for the proposition that grandparentswhose child has died and who have been granted limited visitationrights to their grandchildren by the surviving parent may beawarded additional visitation rights as a "special circumstance." Boyles v. Boyles, (14 Ill. App. 3d 602, 302 N.E.2d 199 (1973)),is contrary to current law. In Boyles, the court held, "Webelieve where a parent has died, the continuation of therelationship between a child and grandparents, which may bepromoted by visitation, may be a positive benefit affecting thebest interest of the child." Boyles, 14 Ill. App. 3d at 604, 302N.E.2d at 201. This standard conflicts with the law stated bythe United States Supreme Court as well as our supreme court thata court must presume that a fit parent acts in the best interestof her children. See Troxel v. Granville, 530 U.S. at 68, 120S.Ct. at 2061, 147 L.Ed.2d at 58; Lulay v. Lulay, 193 Ill. 2d at461, 639 N.E.2d at 525. Therefore, we will not authorize thisvisitation order under common law.

The judgment of the circuit court of Kankakee County isreversed.

Reversed.

BRESLIN and McDADE, J.J., concur.