West v. West
State: Illinois
Court: 5th District Appellate
Docket No: 5-97-0108
Case Date: 01/27/1998
NO. 5-97-0108
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
CAROLYN A. WEST and ) Appeal from the
JOHN W. WEST, ) Circuit Court of
) Jefferson County.
Petitioners and Cross- )
Appellees, )
)
v. ) No. 93-F-92
)
GINGER WEST, )
) Honorable
Respondent and Cross- ) Terry H. Gamber,
Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE MAAG delivered the opinion of the court:
This action was brought in April of 1993 by Carolyn and John
West (grandparents) to obtain visitation rights with their
grandson, Jacob Dean West. Jacob was born January 27, 1992. He is
the biological son of Ginger West and Gregory West, Carolyn and
John's deceased son. In June of 1993, when Jacob was approximately
17 months old, the grandparents were granted accelerating
visitation privileges. The visitation began with brief visits
every Saturday for six consecutive weeks in the presence of Ginger
and culminated with alternating weekends, two weeks every summer,
and December 26 and 27 yearly.
In June of 1995, Ginger filed a petition to modify the order
of visitation, which was denied. In February of 1996, after
various petitions were filed requesting Ginger to show cause why
she should not be held in contempt for not complying with the June
1993 order of visitation, Ginger filed a petition to terminate the
grandparental visitation privileges of Carolyn and John. On May
15, 1996, Ginger filed a notice of claim of unconstitutionality of
the grandparental visitation statute (750 ILCS 5/607(b) (West
1996)). The trial court denied Ginger's motion to declare the
statute unconstitutional. A notice of appeal was filed on this
issue in December of 1996.
The relevant facts are as follows. Carolyn and John West are
the paternal grandparents of Jacob West. Jacob is the biological
son of Gregory and Ginger West. Gregory West, son of Carolyn and
John, committed suicide in January of 1993.
In June of 1993, the circuit court of Jefferson County entered
an order establishing visitation privileges for Carolyn and John
with Jacob. The trial court made a finding that it was in the best
interest of the child that such visitation should occur, but the
court did not disclose the basis of its finding.
In July of 1995, Ginger filed a petition to modify the June
1993 order of visitation. In August of 1995, Ginger unilaterally
terminated the scheduled visitations. After Ginger refused to
comply with the 1993 visitation order, Carolyn and John filed a
series of petitions seeking a rule to show cause why Ginger should
not be held in contempt of court for her noncompliance. In
February of 1996, Ginger filed a petition to terminate Carolyn's
and John's visitation privileges. In May of 1996, Ginger filed a
motion to declare the grandparental visitation statute
unconstitutional. In June of 1996, a hearing was held on the
various issues in this case.
At this hearing, there was testimony that soon after Jacob
began visiting with John and Carolyn, he began exhibiting changes
in his behavior, all of which coincided with the visits. He began
to speak with a speech impediment caused by a disfigurement of his
face, which involved him twisting his mouth downwards and to the
right. He regressed in his toilet training. He experienced
periods of hysterical crying and nightmares. He became fearful of
his mother and exhibited instances of self-abuse, when he would hit
or bite himself when he thought he had done something wrong.
In August of 1995, Ginger took Jacob for a psychiatric
evaluation. During this evaluation, Ginger found out that Jacob
had been told how his father died. She had not told him the
details of his father's death because she felt he was too young to
cope with them. Carolyn and John deny telling him the details.
Jacob told his maternal grandmother that Carolyn and John told him
Ginger did not love him. Carolyn and John also deny telling him
this.
The doctors concluded that Jacob suffered from traumatic
stress disorder that is related to some aspect of visitation with
Carolyn and John. The doctors could not determine with certainty
whether the disorder was caused by something that transpired during
visitation or whether it was caused by the active conflict between
his mother and grandparents. One doctor opined that the disorder
was caused by the visitation schedule that was set up with his
paternal grandparents when he was less than two years old, which
caused him to be separated from his mother.
Based upon findings by the doctors and the changed behavior
patterns of Jacob, the Illinois Department of Children and Family
Services (DCFS) conducted an investigation. DCFS determined that
there was a risk of harm to the child from future contact with
John. This was based on statements made by Jacob that he and his
grandfather had a "bad secret" that he could not tell anyone and
was based on other statements by Jacob which suggested he had been
sexually abused. DCFS made a further finding of credible evidence
of child abuse and/or neglect. These findings, combined with the
findings of the doctors during the psychiatric evaluations, led
Ginger to stop the visits between Jacob and his grandparents and to
seek the modification and later termination of Carolyn's and John's
visitation privileges.
The trial court denied Ginger's motion challenging the
constitutionality of the grandparental visitation statute. The
trial court chose to modify the visitation privileges of Carolyn
and John to supervised visitation to take place one Sunday per
month for three hours in the home of Jacob's maternal grandmother,
instead of terminating visitation. Carolyn and John appealed the
restriction of visitation. Ginger cross-appealed the ruling of the
trial court denying her motion to find the grandparental visitation
statute unconstitutional.
On April 24, 1997, John West moved for a voluntary dismissal
of the grandparents' appeal, Carolyn West then being deceased.
John's motion was granted. Ginger proceeded with her cross-appeal.
The issue presented for review on appeal is whether section
607(b) of the Illinois Marriage and Dissolution of Marriage Act
(Act) (750 ILCS 5/607(b) (West 1996)), insofar as it pertains to
grandparental visitation privileges, is unconstitutional as
violative of the fundamental liberty rights of parents to the care
and custody of their children, which are guaranteed to them by the
fourteenth amendment to the United States Constitution and article
1, section 2, of the Constitution of the State of Illinois.
We begin our analysis of this issue with the presumption that
the challenged provision of the visitation statute is
constitutional. See Tully v. Edgar, 171 Ill. 2d 297, 304, 664
N.E.2d 43, 47 (1996). The court has a duty to construe enactments
so as to sustain their constitutionality and validity, if
reasonably possible. People v. Warren, 173 Ill. 2d 348, 355, 671
N.E.2d 700, 705 (1996). Keeping these principles in mind, we now
proceed with our analysis.
Ginger begins her argument with a discussion of the long-
recognized constitutionally protected interest of parents to raise
their children without undue State influence. See Meyer v.
Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625, 626
(1923); Pierce v. Society of the Sisters of the Holy Names of Jesus
& Mary, 268 U.S. 510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571-73
(1925); Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645,
64 S. Ct. 438, 442 (1944); Wisconsin v. Yoder, 406 U.S. 205, 235,
32 L. Ed. 2d 15, 92 S. Ct. 1526, 1543 (1972); Santosky v. Kramer,
455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388, 1394 (1982).
However, this constitutionally protected parental interest is not
wholly without limit or beyond regulation. Prince v. Commonwealth
of Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438,
442 (1944). "[T]he state has a wide range of power for limiting
parental freedom and authority in things affecting the child's
welfare." Prince, 321 U.S. at 167, 88 L. Ed. 645, 64 S. Ct. at
442. In fact, the entire familial relationship involves the State.
When two people decide to get married, they are required to
first procure a license from the State. If they have children of
this marriage, they are required by the State to submit their
children to certain things, such as school attendance and
vaccinations. Furthermore, if at some time in the future the
couple decides the marriage is not working, they must petition the
State for a divorce. Marriage is a three-party contract between
the man, the woman, and the State. Linneman v. Linneman, 1 Ill.
App. 2d 48, 50, 116 N.E.2d 182, 183 (1953), citing Van Koten v. Van
Koten, 323 Ill. 323, 326, 154 N.E. 146 (1926). The State
represents the public interest in the institution of marriage.
Linneman, 1 Ill. App. 2d at 50, 116 N.E.2d at 183. This public
interest is what allows the State to intervene in certain
situations to protect the interests of members of the family. The
State is like a silent partner in the family who is not active in
the everyday running of the family but becomes active and exercises
its power and authority only when necessary to protect some
important interest of family life. Taking all of this into
consideration, the question no longer is whether the State has an
interest or place in disputes such as the one at bar, but it
becomes a question of timing and necessity. Has the State
intervened too early or perhaps intervened where no intervention
was warranted? This question then directs our discussion to an
analysis of the provision of the Act that allows the challenged
State intervention (750 ILCS 5/607(b) (West 1996)).
Before beginning our analysis, we must note that the appeal of
the ruling in this case is based solely on constitutional grounds.
The grandparental visitation provision states:
"(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 (b), a
petition for visitation privileges may be filed under this
subsection (b) whether or not a petition pursuant to this Act
has been previously filed or is currently pending if one or
more of the following circumstances exist:
(A) the parents are not currently cohabiting on a
permanent or an indefinite basis;
(B) one of the parents has been absent from the marital
abode for more than 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.
* * *
(3) When one parent is deceased, the surviving parent
shall not interfere with the visitation rights of the
grandparents." 750 ILCS 5/607(b) (West 1996).
This provision has undergone many amendments since its
introduction into Illinois statutory law. See E. Burns,
Grandparent Visitation Rights: Is it Time for the Pendulum to
Fall?, 25 Fam. L.Q. 59, 64 (1991). A close look at the history of
this provision provides some insight into what the legislature was
trying to achieve in enacting it.
The provision was first construed as recognizing a
grandparent's right to seek visitation after the parents divorced.
25 Fam. L.Q. at 64, citing Ill. Rev. Stat. 1981, ch. 40, par.
607(b). Less than one year after the provision's enactment, it was
amended to provide grandparents a right to seek visitation
privileges if one of the child's parents died. Ill. Rev. Stat.,
1982 Supp., ch. 40, par. 607(b); see 25 Fam. L.Q. at 64-65. In
1985, the provision was again amended to allow for visitation
privileges when the child had been adopted by the surviving parent
or the custodial parent's spouse. Ill. Rev. Stat. 1985, ch. 40,
par. 607(b); see 25 Fam. L.Q. at 65. In 1989, the provision was
again amended. Language in this amendment allowed the grandparents
to seek visitation privileges regardless of whether the family was
still intact. Ill. Rev. Stat. 1989, ch. 40, par. 607(b); see 25
Fam. L.Q. at 65. That language was revised less than one year
after becoming law. Pub. Act 86-1452, eff. July 1, 1991; Ill. Rev.
Stat., 1990 Supp., ch. 40, par. 607(b); see 25 Fam. L.Q. at 65.
The statute presently provides that a grandparent is permitted
under limited circumstances to seek visitation privileges even if
the parents are not divorced. These circumstances include the
following: (1) when parents are not living together on a permanent
or indefinite basis, (2) when one of the parents has been missing
for more than one month without the other spouse knowing his or her
whereabouts, or (3) when one of the parents joins in the petition
with the grandparents. 750 ILCS 5/607(b)(1)(A),(B),(D) (West
1996). For the most part, these circumstances parallel the common
law "special circumstances" recognized by Illinois case law that
predated the statute.
A review of the following cases is instructive. In Solomon v.
Solomon, 319 Ill. App. 618, 49 N.E.2d 807 (1943), after a divorce,
the mother was granted custody of the child, and the father was
given visitation with the child at reasonable times. The father
was later inducted into the armed forces and was unable to exercise
his visitation. He joined in a petition with his parents so that
they could have visitation with the child. The grandparents were
given visitation privileges with the child. Solomon, 319 Ill. App.
at 619, 49 N.E.2d at 808. The Solomon case parallels section
607(b)(1)(D) of the Act (750 ILCS 5/607(b)(1)(D) (West 1996)).
In Boyles v. Boyles, 14 Ill. App. 3d 602, 603, 302 N.E.2d 199,
200 (1973), after the death of their daughter, who had been granted
custody of the child in a divorce proceeding, the maternal
grandparents sought visitation privileges. Visitation was ordered
by the court with the consent of the father, who later refused to
comply with the order. Boyles, 14 Ill. App. 3d at 603, 302 N.E.2d
at 200. On appeal, the court held that the father was required to
comply with the court order because the child had visited with the
grandparents every day prior to the mother's death and the father
had agreed to the visitation in the court order. Boyles, 14 Ill.
App. 3d at 604, 302 N.E.2d at 201. "We believe where a parent has
died, the continuation of the relationship between child and
grandparents, which may be promoted by visitation, may be a
positive benefit affecting the best interest of the child."
Boyles, 14 Ill. App. 3d at 604, 302 N.E.2d at 201. This rule
announced in the Boyles case coincides with both section
607(b)(1)(C) and section 607(b)(3) (750 ILCS 5/607(b)(1)(C), (b)(3)
(West 1996)).
We do not believe that the legislature was attempting to
change the common law as announced in these decisions. "A statute
will be construed as changing common law only to the extent that
the terms thereof warrant, or as necessarily implied from what is
expressed." Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039, 430
N.E.2d 652, 654 (1981), citing Sternberg Dredging Co. v.
Sternberg's Estate, 10 Ill. 2d 328, 140 N.E.2d 125 (1957); Acme
Fireworks Corp v. Bibb, 6 Ill. 2d 112, 126 N.E.2d 688 (1955);
People v. Monoson, 75 Ill. App. 3d 1, 393 N.E.2d 1239 (1979).
"Repeal of the common law by implication is not favored." Hawkins,
102 Ill. App. 3d at 1039, 430 N.E.2d at 654. Rather, we believe
that the legislature was codifying the common law and
simultaneously expanding grandparental visitation.
The 1989 amendment allowed grandparents to seek visitation
regardless of the status of the nuclear family. In other words,
under the provision as it existed for that short time in 1989 and
1990, a grandparent could seek visitation with a child even when
both of his or her parents were alive and cohabiting. That
amendment's short-lived existence supports the principle that the
State will not seek to intervene in a undisrupted family. This
deference allows both parents to make joint decisions acting in the
best interest of the family as a whole. "[This amendment] comes as
a `promise of relief to some who feel the state has overstepped its
purview by meddling with what they call a sacred right for parents:
to decide who[m] their children should have contact with.'" 25
Fam. L.Q. at 75, quoting Kendall, Grandparents' Rights Challenged,
Chi. Trib., June 4, 1990, 2, at 1. Only in the case of a
disrupted family does the State seek to intervene, and only then to
protect the interests of those who cannot protect their own
interests. This is the same way the issue of grandparental
visitation was handled in the courts before the enactment of the
visitation statute.
This disparate treatment of married parents versus divorced or
widowed parents could arguably give rise to an equal protection
argument. This can be quickly dispelled.
In Kujawinski v. Kujawinski, 71 Ill. 2d 563, 568-69, 376
N.E.2d 1382, 1384 (1978), Mr. Kujawinski was a party to a pending
divorce action. He challenged the constitutionality of certain
provisions of the Act. Specifically, he challenged the provisions
which allowed the court to order a divorced parent to provide
support to children greater than that required by married parents.
Kujawinski, 71 Ill. 2d at 569, 376 N.E.2d at 1385. Our supreme
court held that there is a legitimate basis for distinguishing
between a disrupted family and an intact family because in a
disrupted family, especially one disrupted by divorce, the parents
may not be as willing, or able because of mixed feelings for their
ex-spouse, to consider the best interests of their children.
Kujawinski, 71 Ill. 2d at 580, 376 N.E.2d at 1390. "The
legislature is not restrained from remedying a particular problem
merely because that problem exists for one group of individuals and
not for another." People v. Warren, 173 Ill. 2d 348, 365, 671
N.E.2d 700, 709 (1996). Therefore, it is not a violation of
divorced or widowed parents' equal protection rights for the State
to allow grandparents to seek visitation privileges, because the
problems that arise after the death of one parent or divorce are
not usually present in an intact family.
"In assessing the best interest of the child in matters of
[visitation], the court must consider `all matters that have a
bearing upon the welfare of the child.'" In re Violetta B., 210
Ill. App. 3d 521, 534, 568 N.E.2d 1345, 1353 (1991), quoting People
ex rel. Edwards v. Livingston, 42 Ill. 2d 201, 209, 247 N.E.2d 417,
421 (1969). Among the appropriate matters to consider are: (1)
the nature and length of the child's relationship with persons
seeking visitation and (2) the effect of visitation on the
emotional and psychological well-being of the child. Violetta B.,
210 Ill. App. 3d at 534, 568 N.E.2d at 1353.
We realize that the challenged statute and the common law it
codifies allow the State to act upon a constitutionally recognized
fundamental right of parents. Where a statute infringes upon a
fundamental constitutional right, that statute may be upheld only
if a compelling State interest exists to achieve a stated goal.
Tully v. Edgar, 171 Ill. 2d 297, 304-05, 664 N.E.2d 43, 47 (1996).
The least restrictive means necessary must be used to attain the
goal. Tully, 171 Ill. 2d at 305, 664 N.E.2d at 47. We find that
the State has a compelling interest in maintaining and safeguarding
an established grandparent-grandchild relationship where it has
been proven by the grandparent that it is in the best interest of
the child for the relationship to continue.
We further find that this statute is narrowly tailored to
achieve the goal of maintaining and promoting a grandparent-
grandchild relationship. First, it does not give grandparents an
automatic right to visitation. The visitation statute states that
"[t]he court may grant ***" (emphasis added) a grandparent's right
to visitation and states that a noncustodial parent is "entitled to
reasonable visitation" (emphasis added). 750 ILCS 5/607 (West
1996). This is an important distinction. It shows that the
legislature was conscious of parents' superior right to the custody
and care of their children. Furthermore, the provision does not
allow the grandparents to seek court-ordered visitation while the
nuclear family is intact.
For the foregoing reasons, we find that the grandparental
visitation provision of section 607(b) is constitutional under both
the fourteenth amendment to the United States Constitution and
under article 1, section 2, of the Illinois Constitution of 1970.
We were asked to address only the constitutional issue. We were
not asked to review the circuit court's factual determination.
Therefore, the order of the circuit court is affirmed.
Affirmed.
WELCH, P.J., and KUEHN, J., concur.
Illinois Law
Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
> Minimum Wage in Illinois
Illinois Agencies