This case began with the basic question of whether a nine-year-old girl should beallowed to visit her paternal grandmother. The broader question presented is whether thegrandparental-visitation statute (750 ILCS 5/607(b)(1) (West 2000)) is unconstitutional asviolative of a parent's liberty rights guaranteed by the fourteenth amendment to the UnitedStates Constitution and article I, section 2, of the Illinois Constitution. We will first examinethe constitutional question.

Clemenceau's challenge should not have gone unanswered. If Napoleon were alive, hemight have responded, "Right, it's too serious for us, until the time for killing comes." Thedispute over choosing decision makers for nations is echoed on a smaller, but no lesssignificant scale, in choosing decision makers for family disputes.

Few would argue that the wars-are-too-important epigram could be analogized inreduced scope to "Families are too important to be left to the courts." Even judges wouldgenerally agree with this bit of wisdom when it is applied to most families at most times. The problem, however, is not with the millions of parental decisions made each day,decisions that are never criticized, questioned, or even examined by any outside authority,let alone the judicial system. The problem arises with those relatively limited number ofdecisions that courts make with much less exuberance than is manifested in Napoleon'shypothetical response.

Napoleon's response is a recognition of the fact that when diplomacy has failed anda dispute still exists that must be resolved, the "time for killing" has come and those who areskilled in the art of war must be given the right to decide. Similarly, in families in which thenormal decision-making process has failed for whatever reason (death and divorce are buttwo), courts are called upon to resolve the dispute. Some generals, like Patton, may relishthe chance and even revel in the bloody battles they direct. Most do not. Some judges mayfeel they are actually in a superior position to make life-changing decisions involving familychoices. Most do not. The similarity between generals and judges in this context is that,whether they want to make the decisions or not, they must. The reasons for generalsbecoming the ultimate decision makers are far beyond the scope of this opinion, but thereasons for judges being called upon to resolve family disputes bear further examination.

Adam and Eve's children had no grandparents, and although Cain and Abel'srelationship with each other left a lot to be desired, there is no indication that grandparentalvisitation was a problem at that time. Nor was it a problem for the next several thousand years. Why is this true? Could it be that, for most of that time, families includedgrandparents as a part of the basic family unit? In both tribal units and in subsistencefarming societies, this would appear to be true, and if it is, it is also true that the extendedfamily has been the norm for thousands of generations longer than the nuclear-family modelthat is presented as the norm today. See K. Franklin, "A Family Like Any Other Family:"Alternative Methods of Defining Family Law, 18 N.Y.U. Rev. L. & Soc. Change 1027(1990/1991) (an interesting discussion on the development of the nuclear family).

Even though the nuclear family may be of relatively recent vintage, it has beenaccepted as the norm for more than 100 years. Under the nuclear-family model, parents havedecision-making powers over most elements of their children's lives. The decision-makingpower has been recognized as a fundamental right. See Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000); Pierce v. Society of the Sisters of the Holy Namesof Jesus & Mary, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Meyer v. Nebraska,262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Lulay v. Lulay, 193 Ill. 2d 455, 739N.E.2d 521 (2000). Although it is a fundamental right, it is not an absolute one. Prince v.Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944).

The state's interference with parental powers begins even before the nuclear familyis formed. For example, Illinois has prohibited bigamy for many years. 720 ILCS 5/11-12(West 2000). The state's interference with parental power over children begins with eachchild's birth. E.g., 410 ILCS 240/1 (West 2000) (requiring testing for phenylketonuria atbirth); 410 ILCS 320/1 (West 2000) (requiring testing for syphilis). The interferencecontinues during the child's early years. E.g., 410 ILCS 315/2 (West 2000) (requiringimmunization of all children for diphtheria, pertussis, and tetanus); 410 ILCS 205/1 et seq.(West 2000) (requiring children to receive hearing and visual examinations). In fact, thestate's interference continues throughout the child's life. E.g., 105 ILCS 5/26-1 et seq. (West2000) (requiring parents to keep their children in school); 820 ILCS 205/1 et seq. (West2000) (prohibiting parents from putting their children into the labor force). This list of civilinterferences is not the only state action that restricts parental power. The state also hascriminal sanctions for certain conduct. E.g., 720 ILCS 5/11-11 (West 2000) (prohibitingincest). Although all the above interferences have a statutory basis, the state has alsointervened through its judicial arm in cases involving necessary medical care that parentshave refused for religious reasons. People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104N.E.2d 769 (1952) (requiring blood transfusions for a child over the parents' objections). One drastic interference with parental powers is the removal of children from the home andtheir placement with foster parents because of their natural parents' neglect or mistreatment. See 705 ILCS 405/2-5 (West 2000). The ultimate interference is the termination of parentalrights. See 750 ILCS 50/1 et seq. (West 2000).

The existence of the foregoing list of sanctioned state interferences with parentalrights establishes that parents' power over their children is far from absolute and implicitlyraises this question: If all these interferences are allowed, what is the problem with thegrandparental-visitation statute?

The grandparental-visitation statute provides:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent*** of any minor child *** if the court determines that it is in the best interests andwelfare of the child ***. *** [A] petition for visitation privileges may be filed underthis paragraph (1) *** if one or more of the following circumstances exist:

(A) the parents are not currently cohabiting on a permanent or anindefinite basis;

(B) one of the parents has been absent from the marital abode for morethan one month without the spouse knowing his or her whereabouts;

(C) one of the parents is deceased;

(D) one of the parents joins in the petition with the grandparents, great-grandparents, or sibling; or

(E) a sibling is in State custody." 750 ILCS 5/607(b)(1) (West 2000).

This court ruled on a constitutional challenge to this statute in West v. West, 294 Ill.App. 3d 356, 689 N.E.2d 1215 (1998). West reviewed the statutory provisions, along withthe cases that had allowed visitation before the statute was passed, and concluded that thestatute was both a codification and an expansion of grandparents' visitation rights. Inaddition, West held that the statute was constitutional because it was narrowly tailored toachieve the goal of maintaining and promoting a grandparent-grandchild relationship, amatter in which the state had a compelling interest.

Why then is this statute being challenged again? Because, the appellant replies, inthe interim the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57, 147L. Ed. 2d 49, 120 S. Ct. 2054 (2000), and the Illinois Supreme Court decided Lulay v. Lulay,193 Ill. 2d 455, 739 N.E.2d 521 (2000). The first case held Washington State'sgrandparental-visitation statute unconstitutional. The second case held the Illinois statuteunconstitutional under the particular circumstances of that case.

Troxel is easily distinguishable from this case because of the differences between theWashington statute and the Illinois statute. As this court indicated in West, the Illinoisstatute is narrowly drawn. In contrast, the Washington statute allowed a petition forvisitation to be filed by any person at any time, provisions that the Supreme Court found"breathtakingly broad." Troxel, 530 U.S. at 67, 147 L. Ed. 2d 49, 120 S. Ct. at 2061. Inaddition, the Supreme Court recognized that all 50 states had passed grandparental-visitation-rights statutes, and it did not invalidate all of them. The appellant contends,however, that Troxel controls for three reasons unrelated to the statutory differences.

First, the appellant contends that Troxel mandates that the Illinois statute require afinding of harm to the child before grandparental visitation can be ordered. This is quitesimply not the case. In fact, the Troxel court specifically avoided that question:

"[W]e do not consider *** whether the Due Process Clause requires allnonparental visitation statutes to include a showing of harm or potential harm to thechild as a condition precedent to granting visitation." Troxel, 530 U.S. at 73, 147 L.Ed. 2d 49, 120 S. Ct. at 2064.

Second, the appellant argues that Troxel required a finding of the unfitness of theparents before any court could order grandparental visitation over the parents' objection andthat since the Illinois statute does not make parental unfitness a prerequisite forgrandparental visitation, it is constitutionally flawed.

The appellant's third contention is that the best-interests-of-the-child requirement istoo vague and that since the Illinois statute uses that same standard, it is alsounconstitutionally vague.

The appellant's second argument is based on the following language from Troxel:

"First, the Troxels did not allege, and no court has found, that Granville wasan unfit parent. That aspect of the case is important, for there is a presumption thatfit parents act in the best interests of their children." Troxel, 530 U.S. at 68, 147 L.Ed. 2d 49, 120 S. Ct. at 2061.

There are several problems with the appellant's reliance upon this "fitness" test. First,the Troxel ruling was not based solely on this factor. Troxel was based on the court'sconcern about the broadness of the statute, the fitness presumption, the fact that visitationhad not been entirely cut off by the parent, and the fact that the trial court had apparentlyrequired the parent to prove that visitation would not be in the children's best interests. Itis only after discussing all those elements that the court held as follows:

"[T]he combination of these factors demonstrates that the visitation order inthis case was an unconstitutional infringement on Granville's fundamental right tomake decisions concerning the care, custody, and control of her two daughters." (Emphasis added.) Troxel, 530 U.S. at 72, 147 L. Ed. 2d 49, 120 S. Ct. at 2063.

The second problem with the appellant's reliance on the Troxel test is that the testitself is logically flawed. The Troxel fitness test is saying:

All fit parents always make decisions that are in the best interests of their children.

Granville is a fit parent.

Therefore, Granville always makes decisions that are in the best interests of her children.

The Supreme Court suggests that in order for grandparents to prevail on visitation petitions,they must first attack the minor premise of the syllogism and establish that the parent is notfit. That, of course, would be one way to proceed, and if it were a successful attack underIllinois law, the grandparents might not only obtain visitation but also custody, since inIllinois unfit parents are subject to having their parental rights terminated (750 ILCS 50/1(West 2000)).

However, an attack on the minor premise is not the only way to proceed. Theproblem with the Troxel fitness test is that the major premise claims too much; it is simplynot true that fit parents always make decisions that are in the best interests of their children. A few examples should be sufficient to dispel the truth of the major premise. Every day,parents who are good and honest and concerned parents do some of the following things. They eat, drink, or smoke too much and, therefore, lessen the likelihood that they will bealive and well throughout their children's lives. On occasion, they drive too fast withchildren in the car, they allow children to play unsupervised, they fail to save enough forcollege, they discipline the children too much or too little, they fail to make it to their son'sbaseball game or their daughter's soccer game, or they do not help with the homework orthey help too much with the homework. Some of these decisions are relatively trivial, butthey are all decisions that affect the best interests of the children, and most parents at sometime have made some decisions that were not in the best interests of their children.

These mistakes do not mean the parents are unfit; they mean they are human. Andjust as fit parents can make mistakes in any of the examples given, they can also makemistakes when it comes to decisions about grandparental visitation. To give an example thatis not intended to depict the facts in this case, consider the following situation. A youngcouple marry and have a little girl, but when the child is two years old, they divorce. Themother is awarded custody, and the father has visitation on alternate weekends. It isnecessary for the mother to work, and rather than place the baby in a day-care facility, sheasks her mother-in-law to care for the child from 8 a.m. to 5:30 p.m. The mother-in-law isnot employed outside her home, and she is happy to watch her only grandchild, so sheagrees. When the child reaches school age, the mother's employment requires her to workevenings, so the schedule changes. She drops her daughter off at school at 8 a.m., and thegrandmother picks the child up at 3 p.m. and keeps her during the evening hours andoccasionally overnight. The mother either picks the child up at the end of her shift atmidnight or comes by in the morning to pick her up for school. This schedule, although notideal, is workable and continues to be used for five or six years. The mother is a good andhonest and caring woman; the grandmother is the same. They both love the child, and thechild loves both of them. Just before the child begins junior high school, things happen. The father dies, and perhaps the mother and her mother-in-law have an argument, or perhapsthe mother-in-law feels she is too old to babysit. Whatever the reason and whatever thesource of any fault, the mother decides that the grandmother will not be allowed to see thechild. Assume, if one has to make such an assumption, that this decision is devastating tothe child, who requires significant counseling as a result of her mother's decision. Thisyoung girl has spent most of her waking hours not with her parents, but with hergrandmother. Her grandmother has been the primary caretaker for her, feeding and clothingher and taking her to or from school, to the doctor, and to most of her childhood functions,for almost her entire life. Is the mother's refusal to allow contact between the child and hergrandmother under these hypothetical (and admittedly weighted) circumstances a decisionmade in the best interests of the child? The appellant contends that Troxel would precludeany judicial review of such a decision because there is no showing of the mother's unfitnessas a parent. We disagree and reject the appellant's second Troxel contention.

We now turn to the appellant's third Troxel argument-that the best-interests-of-the-child standard is so vague as to render the statute unconstitutional. First, based upon ourreading of Troxel, we note that Troxel does not indicate that a concern with the best-interests-of-the-child standard was a major basis of the plurality opinion. Nevertheless, wewill address the appellant's concerns about the vagueness of the standard.

First, we note that the best-interests standard is not without statutory definition.Although section 607 of the Illinois Marriage and Dissolution of Marriage Act (DissolutionAct) (750 ILCS 5/607 (West 2000)) itself does not include any defining terms, section 602of the same act (750 ILCS 5/602 (West 2000)), which deals with the determination ofcustody, does:

"