Good SIU Article

Posted on July 26, 2011 by mgoldberg
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I. INTRODUCTION
In April of 2002, Illinois became the only state in the country without a law permitting grandparents to seek court imposed visitation with their grandchildren, when the Illinois Supreme Court held that the Illinois Grandparent Visitation Act¹ was facially unconstitutional.² In the wake of the Wickham holding (a 6-1 vote) and the strong pro-parent language contained therein, it is clear that to pass constitutional muster, a revised Illinois Grandparent Visitation Act must shed the “best interest” standard and adopt the more stringent “harm to the child” standard, which will permit grandparents (or other interested third parties) to petition the court for visitation only if they can show actual harm to the child if visitation is not granted.
The Grandparent Visitation Act (750 ILCS 5/607) was not created in a vacuum; it was a legislative reaction to significant changes in the nuclear family. Such changes include the increase in the rate of divorce, more families with both parents working, a rise in single parent homes and other variations of the traditional concept of the American family, not to mention the dramatic increase in the percentage of Americans who are grandparents.³
The statistics demonstrate the changes to the nuclear family. In 1996, twenty-eight percent of all children under the age of eighteen lived with only one parent.⁴ In these single-parent households, persons outside the nuclear family are called upon with increasing frequency to take part in the everyday tasks of child rearing. In 1998, approximately 4 million children, or 5.6% of all children under the age of eighteen lived in their grandparent’s home.⁵ Furthermore, the 2000 census revealed a pertinent statistic in Illinois: 40% of the households in Illinois list grandparents as the primary caregivers for their children.⁶ These new developments in the nature of the American family have led to a less traditional role for grandparents and their grandchildren. At the same time, the number of grandparents has been growing rapidly as the baby boomer generation ages. There were fifty-eight million American grandparents in 1991 and that number is expected to grow to ninety-eight million in 2001.⁷ With increasing frequency, today’s grandparents are more actively involved in the lives of their grandchildren. American society has come to view this less traditional relationship as warranting state protection. As the nuclear family erodes, unhappy families often experience wrenching struggles between adults for the opportunity to nurture children and enjoy their affection and companionship.
Nationwide enactment of child visitation statutes-such as the former Illinois Grandparent Visitation Act- is certainly due to the changing realities of the American family, and over the past thirty years, each state has enacted some form of statute enabling a grandparent (and often other relatives or even non-related persons) to petition the courts for mandated visitation with their grandchildren.⁸ Also, the powerful pull of the elderly lobby led to a joint resolution of Congress in 1978 asking the President to proclaim a national Grandparents’ Day.⁹ In the opening statement of a hearing before the House of Representatives concerning grandparents’ rights, Representative Thomas Downey remarked, “It is a well known fact that seniors are the most active lobby in this country, and when it comes to grandparents there is no one group more united in their purpose.”¹⁰ With the longevity, as well as the sheer number, of grandparents increasing (becoming a more sizeable voting body) and the media portraying them as so necessary in young lives, the elderly lobby has stepped up to make grandparent visitation a priority on their senators’ and representatives’ agendas. ¹¹
However, in 2002, the Illinois Supreme Court went against this overwhelming national trend and invalidated the Illinois Grandparent Visitation Act, declaring it unconstitutional on its face. The new millennium has not been kind to Illinois grandparents seeking court-mandated visitation with their grandchildren, as courts-both state and federal-have consistently reduced their visitation rights, ultimately extinguishing them altogether.
First came the U.S. Supreme Court case of Troxel v. Granville ¹² in which the Court made a rare decision to wade through the murky waters of family law long enough to determine that the Washington State third-party visitation statute was unconstitutional as applied. The Court’s decision to hear Troxel was noteworthy in that it was the first time since 1923, that the Court directly considered parents’ right to control the upbringing of their children.¹³ The Court stopped well short of declaring all state grandparent visitation statutes unconstitutional, but the decision (a plurality) set the foundation for the Wickham holding, by stating that the wishes of a fit parent must be given deference regarding third-party visitation requests. Such deference was glaringly absent from the Illinois Act. (In fact 750 ILCS 607(b) (3), which that stated that parents “shall not interfere” with the visitation rights of the grandparents, appeared to create a presumption in favor of grandparent visitation.)
Then in October of 2000, in Lulay v. Lulay 14, the Illinois Supreme Court held that state-mandated grandparent visitation as applied to the children of divorced parents, both of whom object to the visitation, was an unconstitutional infringement on the parents’ fundamental liberty interest in raising their children. The Lulay Court was not asked to determine whether the Grandparent Visitation Act was facially constitutional, and therefore left that issue open for another day. That day came on April 18, 2002, when the Illinois Supreme Court decided Wickham. That decision placed the final nail into the coffin of the Grandparent Visitation Act.
The various state grandparent visitation statutes use either the “best interest” standard or the “harm to the child” standard to determine whether to grant visitation. State courts have differed on whether the constitutionality of these statutes should be weighed against the harm standard for state intervention or merely against the “best interest of the child” standard.¹⁵ Under the permissive “best interest” standard (the standard used by the former Illinois Act) the court makes a determination as to whether grandparent visitation would be in the best interest of the child, while under the “harm to the child” standard grandparents may only petition for visitation if there will be harm to the child if visitation is not allowed.
The legislative history of the Illinois Grandparent Visitation Act indicates that the erosion of the traditional nuclear family, (especially the increased incidence of divorce) was a key factor that led to its creation.¹⁶ Before Wickham, when grandparents were suddenly denied visitation with the children with whom they had previously enjoyed visitation, litigation often ensued. Post-Wickham, it is likely that political groups such as American Association of Retired Persons will push for a revised third-party visitation act in Illinois. However, it is by no means clear that such attempts will prove successful in light of Wickham Court’s strong endorsement of the sanctity of a fit parent’s right to determine how to raise his or her children.
This Article will examine the history of the Illinois Grandparent Visitation Act (as well as the common law that existed before the Act) and the cases that must be reckoned with- Wickham , Lulay and Troxel – by the Illinois Legislature if and when it votes to introduce a similar Act. Also reviewed are grandparent visitation cases from other states, to be used as a barometer (along with Wickham Lulay and Troxel ) for the future of court-imposed grandparent visitation in Illinois. The key factor to consider when drafting a revised grandparent visitation statute will be which constitutional standard to use determine whether the state may interfere with a fit parent’s decision not to allow visitation. The better view is the harm standard, in which a grandparent must allege actual harm to the grandchild if visitation is denied.
II. THE ILLINOIS GRANDPARENT VISITATION ACT AND COMMON LAW GRANDPARENT VISITATION

A. The following sections of the Illinois Grandparent Visitation Act have been held facially unconstitutional:
“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…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.”¹⁷

B. Legislative history of the Act and the Common Law before the Act.
Prior to the legislature’s enactment of section 607(b)(1), Illinois common law provided no visitation rights to grandparents. Under the common law, grandparents were granted visitation privileges only under special circumstances, for they lacked any legal right to visitation with their grandchildren if such visitation was forbidden by the parents.¹⁸ In the absence of special circumstances, a granting of visitation privileges to a grandparent over objections of a parent constituted reversible error.¹⁹ Any obligation that parents may have had to allow visitation was a moral obligation, not a legal one. In Chodzko v. Chodzko ²⁰, for example, the Circuit Court of Cook County allowed a maternal grandfather to intervene in the divorce proceeding between his daughter and her husband and receive visitation privileges with his grandchildren over the objection of the mother. The Supreme Court reversed the order granting visitation on the basis that the grandfather’s petition contained no allegations to support a conclusion that either parent was unfit or had forfeited the superior right to the custody and care of the children.²¹
Moreover, the Court in Chodzko stated:
“No special circumstances have been established that would warrant granting special visitation rights to the grandfather. It is commendable that a bond of love and affection, as alleged, exists between the grandfather and the minor children; however, this and the allegation of past favors do not justify carving out of the custody and visitation rights of the natural parents still another visitation right and vesting it in the grandfather. The right to determine the third parties who are to share in the custody and influence of and participate in the visitation privileges with the children should vest primarily with the parent who is charged with the daily responsibility of rearing the children. In the absence of unusual circumstances, these matters should not be of judicial concern.”²²

Three such “special circumstance” cases were discussed in Chodzko . They are as follows:

(1) In Solomon v. Solomon ²⁴ (following a divorce in which the mother was awarded custody and the father was granted visitation rights, the soldier-father was stationed in Oregon and was unable to travel to see his two-year-old son. The court granted the father’s petition to allow his parents to visit the child during his absence.
(2) In Lucchesi v. Luccehesi ²⁵, the father of a minor child was killed in action during World War II. The father’s will provided that his parents were to act as trustees of a fund for the benefit of his child. The grandparents’ petition for visitation rights was allowed as a matter of justice, giving consideration to the death of the child’s father and the trusteeship of the grandparents.
(3) In Boyles v. Boyles ²⁶ the parents were divorced, and the mother awarded custody. Following the mother’s death, custody was awarded to the father, who lived in Colorado, and the maternal grandparents were allowed visitation for two weeks each summer and at other reasonable times.
The Grandparent Visitation Act was codified to recognize a grandparent’s right to seek visitation after the parent’s divorce.²⁷ 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 parents died.²⁸ 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.²⁹ In 1989, during what must have been a particularly influential period for groups like the American Association of Retired Persons, the provision was amended once more, allowing grandparents to seek visitation privileges regardless of whether the family was still intact.³⁰ This Pandora’s box was wisely closed less than one year after becoming the law.³¹
C. Grandparent Visitation when both Parents are Deceased
Grandparent visitation is also provided for in section 11-7.1 of the Probate Act³² where such visitation rights may be granted if the natural or adoptive parents of the child are deceased. The pertinent section of 11-7.1 states as follows:
“Whenever both natural or adoptive parents of a minor are deceased, visitation rights shall be granted to the grandparents of the minor who are the parents of the minor’s legal parents unless it is shown that such visitation would be detrimental to the best interests and welfare of the minor. In the discretion of the court, reasonable visitation rights may be granted to any other relative of the minor or other person having an interest in the welfare of the child. However, the court shall not grant visitation privileges to any person who otherwise might have visitation privileges under this Section where the minor has been adopted subsequent to the death of both his legal parents except where such adoption is by a close relative. For the purpose of this Section, “close relative” shall include, but not be limited to, a grandparent, aunt, uncle, first cousin, or adult brother or sister.
Where such adoption is by a close relative, the court shall not grant visitation privileges under this Section unless the petitioner alleges and proves that he or she has been unreasonably denied visitation with the child. The court may grant reasonable visitation privileges upon finding that such visitation would be in the best interest of the child.
An order denying visitation rights to grandparents of the minor shall be in writing and shall state the reasons for denial. An order denying visitation rights is a final order for purposes of appeal.”³³

In 11-7.1 the burden is on the persons who have custody of the child, and who want to refuse visitation, to demonstrate why visitation would be detrimental to the child’s best interest.³⁴ However, if the child is adopted by a close relative (e.g., a grandparent, aunt, uncle, first cousin, or adult brother or sister) then the petitioning relative must first establish that he or she has been unreasonably denied visitation.³⁵
III. Pre- Wickham cases involving the Grandparent Visitation Act
Prior to Wickham and Lulay the most recent case to consider the constitutionality of the Illinois Grandparent Visitation Act was West v. West .³⁶ In that case the Appellate Court held that the grandparent visitation provision of the Marriage and Dissolution of Marriage Act was constitutional and did not violate the fundamental liberty rights of parents to the care and custody of their children.³⁷ Furthermore, the West Court ruled that the grandparent visitation statue violated divorced or widowed parents’ equal protection rights through disparate treatment versus married parents, by stating that it is not an equal protection issue to allow grandparents (of divorced or widowed parents) 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.³⁸ The Court went on to state that the Grandparent Visitation Act was a remedy for the consequences of a disrupted family where 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.³⁹
In West, it was determined that the threshold considerations for a court deciding whether to entertain a petition for grandparent visitation are timing and necessity. A court must determine whether the petitioner has asked the state to intervene too early or perhaps intervene where no intervention is warranted.⁴⁰ The West Court stated that though the section 607 best-interest standard does not guarantee that grandparents have visitation, “[n]ormally, the loving, caring, and reasonable grandparent should be given visitation, and, normally, this visitation should not be restricted.”⁴¹ However, the Court- foreshadowing the Wickham holding-stated that section 607(b) “should not be interpreted as equating [grandparents’] rights with parental rights.”⁴² Parents, not grandparents, are responsible for the children’s custody, care, education, nurture, and support.⁴³ Grandparents do not step into their deceased child’s shoes in regard to visitation with the grandchildren under section 607.⁴⁴ As such, prior to Wickham , if grandparents were awarded visitation, it was typically much less than would be the case if the court were entertaining a petition for visitation from a non-custodial parent. This was true, even if the grandparents had a history of frequent visitation with their grandchildren, which is often the case when there is a spousal death, where the grandparents take on an increased role in the care for the minor children, either just before the death, if the parent is terminally ill, or after the death of the parent, to facilitate the grieving process and to allow adequate time to find suitable child care.
In McVey v. Fredrickson ⁴⁵ the paternal grandparents were awarded visitation one day per month with their grandchildren after their son’s post dissolution death. For two years after the son’s death and until the daughter-in-law remarried, the grandchildren spent considerable amounts of time with the grandparents during each school day, sometimes spending the night while the daughter-in-law worked two jobs. After the daughter-in-law’s remarriage, the grandchildren gradually spent less time with the grandparents, because the daughter-in-law became a full-time housewife and she also wanted the children to attend church with her.⁴⁶ The appellate court in McVey found that the trial court did not abuse its discretion in the amount of visitation it awarded. Even though the grandchildren and grandparents had a close relationship following the son’s death, after the daughter-in-law remarried the children enjoyed more of a normal family life.⁴⁷
In re the Marriage of Lindsey, is another case that illustrates the limited amount of visitation awarded to grandparents prior to Wickham. In that case the paternal grandmother received visitation with her grandchildren one day per month to occur at her ex-daughter-in-law’s home. The appellate court ruled that the trial court did not abuse its discretion in fashioning the visitation order, even though the grandmother baby-sat the children prior to the dissolution, since afterward, the grandmother was hostile toward her ex-daughter-in-law and the trial court was concerned with the grandmother’s possible counterproductive relationship with the grandchildren.⁴⁸
In the Interest of Brittany Lee Gollahon v. Rebecca A. Gollahon ⁴⁹, the appellate court affirmed the trial court’s decision to grant visitation with grandchildren to the grandparent of a deceased parent on the third Saturday of each odd-numbered month and the third Sunday of each even-numbered month from 8 a.m. to 6 p.m. In that case the appellate court agreed that this was reasonable visitation even though the grandparent previously spent a great deal of time with the grandchildren, and stated that it is now appropriate for the children to spend much of their time with their mother, in their “new” familial setting.⁵⁰
Following this history of appellate decisions interpreting the Grandparent Visitation Act the Illinois Supreme Court elected to hear a Grandparent Visitation Act case on the issue of its constitutionality as applied to divorced parents, both of whom were against visitation.⁵¹
IV. LULAY V. LULAY
A. The facts
Subsequent to Michael and Kiley Lulay’s divorce, they shared joint custody over their three minor children.⁵² Some time after the final dissolution of the Lulay’s marriage, Gail Lulay, Michael’s mother, filed a petition in the circuit court of Du Page County under section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(1) seeking visitation with her three grandchildren.⁵³ Michael and Kiley filed a motion to dismiss the petition for visitation arguing that section 607(b)(1) should not be interpreted to permit a grandparent to sue his or her own child for visitation with grandchildren; and that if the statute is construed in this manner, the statute is an unconstitutional infringement on their fundamental liberty interest, as parents, in raising their children.⁵⁴ The circuit court denied the parents’ motion to dismiss, however, on the parents’ request, the circuit court certified for interlocutory appeal the following questions: (1) Should section 607 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607) be interpreted to permit the court to conduct a hearing and determine whether it is in the best interest of a child to visit with grandparents who seek such visitation from their own child? (2) If so, is such a statute constitutional? The Court also permitted the Attorney General of the State of Illinois to intervene to defend the constitutionality of section 607(b)(1).
B. The Decision
After citing the relevant portions of Section 607(b)(1) and “with Troxel in mind”⁵⁵ the Court in Lulay ruled that the plain language of 607(b)(1) permits a grandparent to file a petition for visitation where the grandparent’s own child, i.e. the parent, objects to the visitation between the grandparent and grandchild and therefore the Act is not constitutional.⁵⁶ The Court held that that section 607(b)(1) , is an unconstitutional infringement on Michael and Kiley Lulay’s fundamental liberty interest in raising their children reasoning that encompassed within the well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate.⁵⁷ Because the Court held that the application of section 607(b)(1) to the Lulay case is unconstitutional, they choose not to address the father’s argument that section 607(b)(1) is facially unconstitutional.⁵⁸ However, as Justice Heiple argues in his concurring opinion, the failure to address the constitutionality of the entire Act leaves open the possibility that other grandparents, under a slightly different set of facts, might successfully petition for grandparent visitation under 607(b)(1) . Justice Heiple went on to say that the majority opinion in Lulay is at odds with Troxel, because it appears that after Lulay, under section 607, if one parent dies, a grandparent can petition for visitation, which can be granted if the court finds that visitation is in the best interests of the child. And he correctly states that this case is simply Troxel by a different name and is precisely the remedy the Supreme Court held unconstitutional. The rationale of Troxel clearly points to a ruling that section 607 be held unconstitutional on its face.⁵⁹

V. The Wickham 609 Court finds the Grandparent Visitation Act facially unconstitutional.

A. The facts⁶¹

Wickham is a perfect example of the type of family discord that leads to litigation regarding grandparent visitation after the death of a parent, Paul Byrne lost his wife to a terminal illness less than a year after their daughter was born.⁶² After his wife’s death, Paul agreed to maintain the relationship between his wife’s mother, Virginia Wickham and the child, often driving the child 50 minutes to Virginia’s home for visits. Virginia, however, wanted more time with her granddaughter and asked Paul for unsupervised overnight visitation. Paul felt that overnight visitation was inappropriate, but agreed to continue to drive his daughter to Virginia’s home when his schedule permitted.⁶³ Unable to convince Paul to let the child stay at her house overnight, Virginia filed a petition in the circuit of Cook County for grandparent visitation under 750 ILCS 607 (b) (1).⁶⁴
Initially, Paul moved to dismiss the petition based upon Troxel and Lulay. Paul argued that section 607(b)(1) of the Act violated the due process clauses of the Illinois and United States Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§ 1, 2. The trial court denied the motion.⁶⁵
At the hearing on Virginia’s petition, the court heard testimony from Paul, Virginia, and J.B.’s pediatrician.⁶⁶ Prior to ruling, the court stated that “the standard to be used in grandparent’s visitation is the best interest of the child. Generally, it’s presumed that a relationship with a grandparent is in the best interest of the child.”⁶⁷ However, the court held that Virginia’s attempts to undermine the relationship between Paul and J.B. by filing frivolous and unfounded complaints with the Department of Children and Family Services and interfering with J.B.’s pediatric care without Paul’s consent warranted limited visitation. Thus, the court denied overnight visitation, but ordered supervised visitation with the minor child at Paul’s home four hours a week. The trial court appointed a child representative and set the case for status in 60 days.⁶⁸ Following the hearing, Paul filed a motion to dismiss the petition, which was denied. Paul then filed an application for an interlocutory appeal under Illinois Supreme Court Rule 308, which was also denied.⁶⁹ The Illinois Supreme Court granted Paul’s petition for leave to appeal.⁷⁰
B. The Wickham holding; the best interest standard is not enough.
The Wickham Court found sections 607(b)(1) and (3) facially unconstitutional. The Court began its analysis by recognizing that the fourteenth amendment of the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV, § 1, and that the due process clause grants “heightened protection against government interference with certain fundamental rights and liberty interests.⁷¹ The Court cited a long list of U.S. Supreme Court cases to support the principle that one of the fundamental rights protected under the fourteenth amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion. Therefore, the court ruled that state interference with fundamental parental child rearing rights is justified in limited instances to protect the health, safety, and welfare of children.⁷² The Court determined that the issue involved in Wickham, visitation with grandparents, did not involve a threat to the health, safety or welfare of the children. The Court listed examples of “limited instances” that would justify state interference with parental child rearing rights such as: testing for phenylketonuria at birth (410 ILCS 240/1 (West 2000)); required immunization for diphtheria, pertussis, and tetanus (410 ILCS 315/2 (West 2000)); required hearing and visual examinations (410 ILCS 205/1 et seq. (West 2000)); and prohibited child labor (820 ILCS 205/1 et seq. (West 2000)).⁷³ The Court ruled that refusing grandparents visitation with their grandchildren does not involve a threat to the health, safety, or welfare of children.⁷⁴ Unlike the statutes concerning inoculation or immunization, sections 607(b)(1) and (b)(3) involve visitation and a parent’s decision to control who may interact with his or her children.⁷⁵
The Wickham Court recognized that in most cases, the relationship between a child and his or her grandparents is a nurturing, loving relationship that provides a vital connection to the family’s history and roots.
However, the Court stated:
“[A]s with all human relationships, conflicts may arise between a child’s parents and grandparents. In many cases, this conflict will concern disagreements about how a parent is raising his or her children. Yet, this human conflict has no place in the courtroom. This is true even where the intrusion is made in good conscience, such as the request for visitation to preserve the child’s only connection to a deceased parent’s family. Parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presumption that parents act in their children’s best interest prevents the court from second guessing parents’ visitation decisions. Moreover, a fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents-not judges-should be the ones to decide with whom their children will and will not associate.” ⁷⁶

The Wickham Court found a “flaw” in the Grandparent Visitation Act because similar to the Washington statute at issue in Troxel- it permitted visitation if it was determined by the court to be in the best interests and welfare of the child, placing the parent on equal footing with the party seeking visitation rights.⁷⁷ The Act did not define that standard nor did it specify the criteria that a court should use to apply it. Frequently, lawyers for the grandparents have directed courts to look to 750 ILCS 602 (best interest criteria for visitation issues between parents) for guidance, but visitation battles between parents are different than those between a parent and grandparent(s), and 602 simply fails to provide courts with adequate guidance to decide grandparent visitation disputes. Moreover, the absence of a best interest provision in 750 ILCS 5/607(b)(1) requiring a court to favor a parent’s wishes regarding visitation or to require a showing that the parent is somehow not fit to make such a decision contradicts the Troxel Court, which found the lack of such criteria pivotal in its ruling, since it determined that a trial court must presume that fit parents act in the best interests of their children.⁷⁸

VI. TROXEL V. GRANVILLE

In the post-Wickham world, Illinois practitioners and/or legislators seeking to amend the Grandparent Visitation Act must, in addition to reviewing the Wickham decision, look to Troxel for guidance. Unfortunately, the Court was unable to draw any bright line rule to determine if third parties can petition the court for visitation. However, the Court has generally determined that a parental right to raise their children as they see fit is fundamental and protected under the Constitution.⁷⁹
A. The Troxel facts

The parents in Troxel, who were never married, had two daughters. While the parents were living together, the father regularly brought the children to visit with his parents. However, the father committed suicide in May of 1993. Although at first after their son’s death, the Troxels continued to see their grandchildren on a regular basis, by October 1993 the mother informed the Troxels that she wished to limit their visitation with the children to one short visit per month. The grandparents filed a visitation petition soon thereafter.⁸⁰ In December 1993, the grandparents filed a petition to obtain the right to visit with their grandchildren. The grandparents filed their petition under two Washington Statutes, Wash. Rev. Code §§ 26.09.240 and 26.10.160 (3) (1994) 819 Only the latter statute was at issue in the case. Section 26.10.160 (3) provided that, “[a]ny person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”⁸² At trial, the grandparents requested two weekends of overnight visitation per month and two weeks of visitation each summer.⁸³ The trial court granted them visitation one weekend per month, one week during the summer and four hours on both of the petitioning grandparents’ birthdays.⁸⁴ The Washington Court of Appeals reversed the lower court’s visitation order on the basis that non-parents lack standing to seek visitation under section 26.10.160(3) unless a custody action is pending. The Supreme Court of Washington disagreed with the appellate court’s construction of the statute, holding that the plain language of section 26.10.160(3) gives grandparents standing to seek visitation regardless of whether a custody action is pending. The Washington Supreme Court held, however, that section 26.10.160(3) is an unconstitutional infringement on the fundamental right of parents to rear their children. Specifically, the court found that the statute is too broad because it allows “any person” to petition for forced visitation with the child “at any time” with the only requirement being that the visitation serve the best interest of the child.⁸⁵ Elaborating on this point, the court held that a trial court should not substitute its judgment for tat of the parents when deciding visitation issues. The U.S. Supreme Court granted certiorari in 1999.⁸⁷
B. The Supreme Court’s decision
The Court’s plurality decision was extremely narrow-finding only that 26.10.160(3) was unconstitutional as applied to the facts of the case-and left many questions unanswered. Most significantly was the failure of the court to set forth an appropriate standard for granting visitation against the wishes of the parent.
The U.S. Supreme Court was concerned that the Washington Statute in question was “breathtakingly broad” in that it permitted “any person” to petition the court for visitation,⁸⁸ and also found fault with the Statute for failing to take into consideration and give deference to the parent’s estimation of the child’s best interest.⁸⁹ Furthermore, the Court ruled that 26.10.160 (3) exceeds the bounds of the Due Process Clause because it does not require a showing that the parent is unfit. In Troxel the mother’s fitness as a parent was never questioned, yet her decision regarding visitation was given no special weight.⁹⁰ The Court determined that there is a presumption that fit parents act in their children’s best interests.⁹¹
In a perfect world, parents and grandparents would always agree about the nature and duration of visits with the grandchildren. However, in the real world fit parents and grandparents often drastically disagree on important details of visitation. In the Troxel decision, the Court stated that, when such disputes arise, the trial court must accord at least some special weight to the parent’s determination. In her Opinion, Justice O’Connor listed the current state visitation statutes that contain presumptions in favor of the parent: Cal. Fam.Code Ann. 3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in child’s best interest if parents agree that visitation rights should not be granted); Me.Rev.Stat. Ann., Tit. 19A, 1803(3) (1998) (court may award grandparent visitation if it is in the best interest of the child and “would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child”); Minn.Stat. 257.022(2)(a)(2) (1998) (court may award grandparent visitation if it is in the best interest of the child and “such visitation would not interfere with the parent-child relationship”); Neb.Rev.Stat. 43- 1802(2) (1998) (court must find “by clear and convincing evidence” that grandparent visitation “will not adversely interfere with the parent-child relationship”); R.I. Gen. Laws 15-5-24.3(a)(2)(v) (Supp.1999) (grandparent must rebut, by clear and convincing evidence, presumption that parent’s decision to refuse grandparent visitation was reasonable); Utah Code Ann. 30-5-2(2)(e) (1998) (same); Hoff v. Berg, 595 N.W.2d 285, 291-292 (N.D.1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no “compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child’s best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor child”).⁹³
C. Due process and fundamental rights cases cited in Troxel
The Troxel Court found that the liberty interest at issue –the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by the Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) , the Court held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), they again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” The Court explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”⁹⁴ The Court returned to the subject in Prince v. Massachusetts , 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”⁹⁵
Finally, the U.S. Supreme Court found it significant in Troxel that the surviving parent never sought to cut off visitation entirely. In its decision, the Court took note that other states expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. The following statutes were listed by the Court: Miss.Code Ann. 93-16-3(2)(a) (1994) (court must find that “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child”); Ore.Rev.Stat. 109.121(1)(a)(B) (1997) (court may award visitation if the “custodian of the child has denied the grandparent reasonable opportunity to visit the child”); R.I. Gen. Laws 15-5-24.3(a)(2)(iii)-(iv) (Supp.1999) (court must find that parents prevented grandparent from visiting grandchild and that “there is no other way the petitioner is able to visit his or her grandchild without court intervention”).⁹⁷
While the Court stopped short of publishing a ruling in Troxel which could be uniformly applied to any of the 50 state statutes concerning grandparent visitation, the Court did provide enough insight into their reasoning in that decision to provide the Illinois Courts and Legislature with some important clues to drafting a revised Illinois Grandparent Visitation Act.
D. Concurrences

In very brief concurrences, Justices Souter and Thomas agreed with the plurality to affirm the lower court’s ruling.⁹⁸ However, Justice Souter’s opinion reiterated the discussion in Meyers v. Nebraska⁹⁹ and other relevant Supreme Court cases to argue that the decision of the Washington Supreme Court should be affirmed in its entirety.¹⁰⁰
Justice Thomas argued that strict scrutiny should be used in deciding this case.¹⁰¹ Applying this standard, Justice Thomas concluded that the State of Washington failed to prove any governmental interest in allowing non-parent visitation with the child.¹⁰²
E. Dissenting Opinions
Along with the three majority decisions, there were three separate dissenting opinions.¹⁰³ The dissenting Justices agreed with the plurality in refusing to reject the statute as unconstitutional on its face. Justice Stevens argued that this case should never have been granted certiorari.¹⁰⁴ He continued his dissent by stating that the statute sweeps too broadly by allowing “any person” to request visitation of the child.¹⁰⁵ However, Stevens does conclude that previous case law has limited a parent’s supposed fundamental liberty interest.¹⁰⁶
In recommending reversal of the State Supreme Court decision, Justice Scalia was the only Justice to argue that parents are not guaranteed protection under the Constitution to raise their child free from government intervention.¹⁰⁷ In hearing this case, Justice Scalia stated that he was not willing to extend past case law protecting parents’ privacy rights to this case.¹⁰⁸ Concluding his dissent, Scalia determined that this issue is best decided in state courts rather than federal courts.¹⁰⁹
In the final dissent, Justice Kennedy argued that the Washington Supreme Court erred in requiring a showing of harm to the child if visitation was denied.¹¹⁰ Justice Kennedy argued that the State Supreme Court rejected the best interest standard because it incorrectly assumed that the parents have always been the “primary caregivers” of the child and third parties have no “established relationship with the child.¹¹¹ He also argued that the best interest of the child standard should be used in cases regarding visitation with third parties.¹¹² Finally, rather than rejecting this statute on its face, Justice Kennedy suggested that this question is better answered by the state courts.¹¹³

VII. IS THERE A FUTURE FOR GRANDPARENT VISITATION IN ILLINOIS?
A. State Supreme Court Cases
1. Florida
The Florida Supreme Court, which sits in the state where one would think elderly citizens would receive the most liberal treatment, has struck two fatal blows to its State grandparent visitation statute.¹¹⁴ This second decision regarding Florida’s Grandparent Visitation Act, in sum, equates to its complete dismantling based upon its unconstitutionality. In its first decision, the Florida Supreme Court struck down that portion of the statute, which permitted grandparent visitation in an intact family.¹¹⁵ In the second case, Von Eiff , the Florida Supreme Court was confronted with that portion of the statute, which permitted grandparent visitation where one of the parents is deceased. Florida Supreme Court went on to state:
“We find nothing in the unfortunate circumstances of one biological parent’s death that would affect the surviving parents right of privacy in a parenting decision concerning the child’s contact with her maternal grandparents. Philip Von Eiff, whom the trial court found to be a “loving, nurturing and fit” parent continues to enjoy a right of privacy in his parenting decisions despite the death of the child’s biological mother.”¹¹⁶

2. Tennessee
The Tennessee Supreme Court in Hawk vs. Hawk, ¹¹⁷ said that “[w]e too agree that neither the legislature nor a court may properly interfere in parenting decisions absent significant harm to the child from those decisions (referring to the oft-cited line of Federal cases proclaiming the parent’s fundamental rights).”¹¹⁸
Furthermore, the Oklahoma Supreme Court, found its state grandparent visitation statute to be unconstitutional “under the existing facts” of that case¹¹⁹ The Herbst court held that the Oklahoma grandparent visitation statute explicitly violated the federal constitutional rights afforded the parents to the companionship, care, custody and management of their child.¹²⁰ There, the parties were living together as an intact family.¹²¹ The Oklahoma Supreme Court held that the state’s interest in a child is “implicated upon a finding of harm to the child… or of the custodial parent’s unfitness.”¹²²“Without the requisite harm or unfitness, the state’s interest does not rise to a level so compelling as to warrant intrusion upon the fundamental rights of parents.”
The Oklahoma Supreme Court relied heavily on the Georgia Supreme Court’s decision in Brooks vs. Parkerson. ¹²³ There again, the Supreme Court of Georgia struck down the entire grandparent visitation statute as violative of the parents’ rights under the Federal Constitution.¹²⁴ It held that “state interference with parental rights to custody and control of children is permissible only where the health and welfare of a child is threatened.”¹²⁵ The Georgia Supreme Court held that its statute fell short because it failed “to require a showing of harm before visitation can be ordered.”
In Skovv Wicker ¹²⁶ the Kansas Supreme Court concluded that the district court erred in holding that its grandparent visitation statute unconstitutional. The Supreme Court found that on remand the grandmother and great-grandparents had the burden of proving that visitation was in the child’s best interest and that a substantial relationship with the grandchildren existed. The Court stated in addition, that the trial court must give special weight to the fundamental presumption that a fit parent will act in the best interests of his or her child
The Maine Supreme court held in Rideout v. Riendeau ¹²⁷ that Maine grandparent visitation statute was narrowly tailored to serve compelling state interest of addressing children’s relationship with people who had cared for them as parents, and thus did not violate Due Process Clause or constitutional rights of parents, where grandparents had acted as parents for significant periods of time. The Court reasoned that cessation of contact with a grandparent whom a child viewed as a parent could have had a dramatic, even traumatic, effect on the child, giving the State a compelling interest in providing grandparents with such a relationship with a forum to seek contact, holding Me. Rev. Stat. Ann. tit. 19-A, § 1803(1) (B), which required a “sufficient existing relationship” between grandparent and child, could have been applied in a manner consistent with the Due Process Clause of the United States Constitution.
At issue in Linder v. Linder ¹²⁸ was the constitutionality of the Arkansas Grandparental Visitation Act, codified at Ark. Code Ann. § 9-13-103 (Repl. 2002). Even though the Act gives no presumption to the parent’s wishes, and even thought it procedurally favors the granting of grandparental visitation, and, thus, implicitly shifts the burden of proof to the parent, the Arkansas Supreme Court refused to find the Act facially unconstitutional, but did rule that it was unconstitutional as applied to the facts of the case.
In Blixt v. Blixt ¹²⁹ a case before the Supreme Judicial Court of Massachusetts, the mother was living apart from the adjudicated father of the child. The maternal grandfather sought visitation rights to the child. The trial court agreed with the mother’s claim that the grandparent visitation rights statute was unconstitutional. On appeal, the court found that the statute survived a facial challenge on due process grounds and also did not violate equal protection insofar as the mother’s statutory classification was concerned. The statute satisfied strict scrutiny because the appellate court’s construction of the statute narrowly tailored it to further the compelling state interest in protecting the welfare of a child who had experienced a disruption in the family unit from harm. The Court held that because the classification narrowed the impact of the statute, while furthering a compelling State interest, it survived the equal protection challenge. Therefore, the action should not have been dismissed.
In McDuffie v. Mitchell ¹³⁰ a North Carolina Appellate Court affirmed the order dismissing the grandmother’s complaint for court imposed visitation. Although the grandmother sought to intervene in the custody proceedings between the divorced father and mother after the mother died, the custody proceedings terminated after the mother died and custody of the children was awarded to the father. The grandmother asserted that she was entitled to assert her right to visitation with the children. The appellate court held, however, that the grandmother had no right to visitation since there were no ongoing custody proceedings and there was no showing that the father was unfit. The grandmother failed to allege facts to establish unfitness, neglect, or abandonment on the part of the father, or any other type of conduct so egregious that it would constitute forfeiture of the father’s constitutionally protected status as a parent.
Factors to be considered
1.The amount of disruption that extensive visitation will have on the child’s life. This includes disruption of school activities, summer activities, as well as any disruption that might take place between the natural parent and the child as a result of the child being away from home for extensive lengths of time.
2. The suitability of the grandparents’ home with respect to the amount of supervision received by the child.
3. The age of the child.
4. The age, and physical and mental health of the grandparents.
5. The emotional ties between the grandparents and the grandchild.
6. The moral fitness of the grandparents.
7. The distance of the grandparents’ home from the child’s home.
8. Any undermining of the parent’s general discipline of the child.
9. Employment of the grandparents and the responsibilities associated with that employment.
10. The willingness of the grandparents to accept that the rearing of the child is the responsibility of the parent, and that the parent’s manner of child rearing is not to be interfered with by the grandparents.

VIII . Conclusion
While Wickham unambiguously supported a parent’s right to raise his or her children without interference from the state unless the health, safety or welfare of the children are at issue; Troxel left open as many questions as it answered. Neither decision provides a complete blueprint for a visitation act that would withstand constitutional muster. Significantly, the vast majority of the states have viable grandparent visitation statutes¹³¹, and it is a good bet that a new version of 607 (b)(1) will be proposed to the Illinois Legislature. The former Act gave no deference to a parent’s wishes and allowed the state to inject itself into the private realm of the family, absent a showing that a parent is unfit or that there is some harm that will befall the child. As indicated by the Troxel and Wickham Courts these omissions were fatal to the Act’s survival, since it contravened the traditional presumption that a fit parent will act in the best interest of his or her child. A review of recent state supreme court cases involving grandparent visitation indicates that a fit parent must be given deference and that a more stringent standard than “best interest” must be invoked before visitation will be ordered. Absent a finding that a child’s welfare is at issue i.e. physical abuse, malnutrition or other neglect, the state should not substitute its opinion regarding visitation for that of the fit parent. Now that the U.S. and Illinois Supreme Courts have spoken on the issue of grandparent visitation, it is time to sharpen our pencils and try to craft a visitation statute, that comports with those decisions.

1 750 ILCS 5/607 (b) (1) and (3).
2 Wickham v. Byrne, 199 Ill. 2d 309, 263 Ill. Dec. 799, 769 N.E.2d 1 (April 18, 2002).
3 Approximately seventy-five percent of all older Americans are grandparents. S. Con. Res. 40, 98th Cong. (1983), reprinted in 10 Fam. L. Rep. 3027 (BNA 1984).
4 Bureau of Census, U.S. Dept. of Commerce, Current Population Reports, 1997 Population Profile of the United States 27 (1998)).
5 Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49, (2000) (citing Bureau of Census, U.S. Department of commerce, Current Population Reports, Marital Status and Living arrangements: March 1998 (Update), p. i.
6 Chicago Sun-Times , 2000 Census Report, page 6, May 15, 2002
7 Megan Rosenfeld, Grandparents’ Rights; Activists Turn to Court to Protect Their Ties to Grandchildren, Wash. Post, Oct. 16, 1991, at Z12. The numbers have also been reported as 58 million in 1992 predicted to be at 98 million in 2020. Subcomm. on Human Servs. of House Select Comm. on Aging, 102d Cong., Grandparents: New Roles and Responsibilities 1 (Comm. Print 1992).
8 See Stephen Elmo Averett, Grandparent Visitation Right Statutes, 13 BYU J. Pub. L. 355, 356-57 n.8 (1999):Ala. Code 26-10A-30 (1975); Ala. Code 26-10A-31 (1975) (articulating a “best interest” standard in regard to grandparent visitation following adoption of the child); Ala. Code 30-3-4 (Supp. 1997) (allowing visitation privileges for grandparents, in general, at the discretion of the court); Alaska Stat. 25-20-065 (Michie 1996); Ariz. Rev. Stat. Ann. 25-409 (West Supp. 1997); Ark. Code Ann. 9-13-103 (Michie 1998); Cal. Fam. Code 3103 (West 1994); Colo. Rev. Stat. 19-1-117(2) (1997); Conn. Gen. Stat. Ann. 46b-59 (West 1958); Del. Code Ann. tit. 10, 1031(7) (Supp. 1996) (requiring the consideration of “best interest” only if grandparent visitation is being sought where the natural or adoptive parents of the child are cohabiting as husband and wife); Fla. Stat. Ann. 61.13(2)(b)2.c, 752.01 (West 1997 & Supp. 1998); Ga. Code Ann. 19-7-3(c) (Supp. 1998); Haw. Rev. Stat. 571-46.3 (Supp. 1997); Idaho Code 32-719 (1996); 750 Ill. Comp. Stat. 5/607 (West Supp. 1998) held facially unconstitutional as a presumption existed that fit parents acted in the best interests of their children and those statutory provisions violated that presumption by putting the grandparents seeking visitation on an equal footing with the parents in determining the best interests of the children. Wickham v. Byrne , 199 Ill. 2d 309, 263 Ill. Dec. 799, 769 N.E.2d 1 (2002).; 755 Ill. Comp. Stat. 5/11-7.1 (West 1993); Ind. Code Ann. 31-17-5-2 (Michie 1997); Iowa Code Ann. 598.35 (West Supp. 1998); Kan. Stat. Ann. 38-129(a) (1993); Ky. Rev. Stat. Ann. 405.021 (Michie Supp. 1996); La. Rev. Stat. Ann. 9:344 (West Supp. 1998); Me. Rev. Stat. Ann. tit. 19-A, 1803 (West 1998); Md. Code Ann., Fam. Law 9-102 (Supp. 1997); Or. Rev. Stat. ch. 119, 23, 26, 39D (West Supp. 1998); Mich. Comp. Laws Ann. 722.27(1)(g) (West Supp. 1998); Minn. Stat. Ann. 257.022 (West 1998); Miss. Code Ann. 93-16-3(2)(b), -5 (1994); Mo. Ann. Stat. 452.402 (West 1997); Mont. Code Ann. 40-9-102 (1997); Neb. Rev. Stat. 43-1802 (1993); Nev. Rev. Stat. 125A.340 (1997); N.H. Rev. Stat. Ann. 458:17-d (1992); N.J. Stat. Ann. 9:2-7.1 (West Supp. 1998); N.M. Stat. Ann. 40-9-2 (Michie 1994); N.Y. Dom. Rel. Law 72 (Consol. Supp. 1998); N.C. Gen. Stat. 50-13-2A (1995) (applying the “best interest” standard only to cases in which a grandparent seeks visitation following adoption of the child by a stepparent or other relative of the child); N.M. Cent. Code 14-09-05.1 (1997); Ohio Rev. Code Ann. 3109.05.1, .12 (Anderson Supp. 1997); Okla. Stat. Ann. tit. 10, 5 (West 1998); Or. Rev. Stat. 109.121 (1997); 23 Pa. Cons. Stat. Ann. 5311-5313 (West 1991 & Supp. 1997); R.I. Gen. Laws 15-5-24.3(a)(2)(i) (1996); S.C. Code Ann. 20-7-420(33) (Law Co-op. Supp. 1997); S.D. Codified Laws 25-4-52 (Michie 1992); Tenn. Code Ann. 36-6-302, -306, -307 (Supp. 1997); Tex. Fam. Code Ann. 153.433(2) (West Supp. 1998); Utah Code Ann. 30-5-2 (Supp. 1998); Vt. Stat. Ann. tit. 15, 1011, 1013 (1989); Va. Code Ann. 63.1-204.1 (Michie 1995); Wash. Rev. Code Ann. 26.09.240 (West 1997); W. Va. Code 48-2B-1(a) (1996); Wis. Stat. Ann. 767.245(1) (West 1993 & Supp. 1997); Wis. Stat. Ann. 880.155(2) (West 1991 & Supp. 1997); Wyo. Stat. Ann. 20-7-101 (Michie 1997).
9 National Grandparents Day, Designation Authorization, Pub. L. No. 95-325, 92 Stat. 398 (1978).
10 Andrew J. Cherlin & Frank F. Furstenberg, Jr., The New American Grandparent 4-5 (1986). Policymakers often consider the roles of grandparents when drafting legislation dealing with the family. At a congressional hearing where the generational bonds between grandparents and other family members was the topic of discussion, Norma Downey testified: “’Grandparents’ Rights’ are critical to a society where children often live with one parent, where divorce has reached astronomical proportions, and feeling secure is a vanishing emotion.” Grandparents Rights: Preserving Generational Bonds: Hearing Before the Subcomm. on Human Servs. of the House Select Comm. on Aging, 102d Cong. 103 (1991) (hereinafter Hearings).
11 Maegen E. Peek, Grandparent Visitation Statutes: Do Legislatures Know The Way To Carry The Sleigh Through The Wide And Drifting Law? 53 Fla. L. Rev. 321 (2001), note 11.
12 Troxel v. Granville , 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49, (2000)
13 Liza Weiman Hanks, Grandparent Visitation Rights,at http://www.nolo.com/encyclopedia/ articles/div/grandparents.html (last visited Jan. 10, 2003).
14 193 Ill. 2d 455, 250 Ill. Dec. 758, 739 N.E.2d 521 (2000).
15 See Weiss v. Varndore, 541 S.E.2d 448 (Ga. 2000) (ruling Ga. Code Ann. § 19-7-3 (1999) unconstitutional in granting a presumption in favor of grandparent’s visitation rights); Santi v. Santi, 633 N.W.2d 312, 321 (Iowa 2001) (ruling Iowa Code § 598.35(7) (1999) unconstitutional because it “permit[ted] such state intrusion on fit parents’ fundamental liberty interest in child rearing” so as to be “facially unconstitutional under article 1, sections 8 and 9 of the Iowa Constitution”); State Dept. of Soc. & Rehab. Servs. v. Paillet, 16 P.3d 962, 970 (Kan. 2001) (ruling Kan. Stat. Ann. § 38-129(a) (2000) unconstitutional as applied because its application “conflict[ed] with the due process requirements discussed in Troxel”); Wilde v. Wilde, 775 A.2d 535, 544-45 (N.J. Super. Ct. App. Div. 2001) (ruling N.J. Stat. Ann. § 9:2-7.1 (West Supp. 1998) unconstitutional as applied because it violated the right of parents to “make decisions concerning the care, custody, and control of their children”).

16 Towne v. Cole , 133 Ill. App. 3d 380, 384-386; 478 N.E.2d 895, 898-900 (2nd Dist. 1985).
17 750 ILCS 5/607 (b) (1) and (3) .
18 (See Boyles v. Boyles (1973), 14 Ill. App. 3d 602; Lucchesi v. Lucchesi (1947), 330 Ill. App. 506; Solomon v. Solomon (1943), 319 Ill. App. 618.)
19 Chodzko v. Chodzko 66 Ill. 2d 28, 360 N.E.2d 60 (1976).
20 Id.
21 Chodzko, 66 Ill. 2d at 34.
22 Chodzko, 66 Ill. 2d at 34-35.
24 Solomon v. Solomon, 319 Ill. App. 618, 49 N.E.2d 807 (1943).
25 Lucchesi v. Lucchesi , 330 Ill. App. 506, 71 N.E.2d 920 (1947).
26 Boyles v. Boyles , 14 Ill. App. 3d 602, 302 N.E.2d 199 (1973)
27 ill.Rev.Stat.1981, ch. 40, par. 607(b).
28 Ill.Rev.Stat., 1982 Supp., ch. 40, par. 607(b).
29 Ill.Rev.Stat.1985, ch. 40, par. 607(b).
30 Ill.Rev.Stat.1989, ch. 40, par. 607(b).
31 Pub. Act 86-1452, eff. July 1, 1991; Ill.Rev.Stat., 1990 Supp., ch. 40, par. 607(b)
32 755 ILCS 5/11-7.1.
33 755 ILCS 5/11-7.1. (a)
34 Id.
35 Id.
36 294 Ill. App. 3d 356, 689 N.E. 2d 1215, 228 Ill.Dec. 794, (5th Dist. 1998)
37 Id. at 364.
38 Id. at 364.
39 Id.
40 Id. at 359
41 In re Marriage of Lindsey , 158 Ill.App.3d at 770, 511 N.E.2d at 199 (1987).
42 Lindsey, 158 Ill.App.3d at 770, 511 N.E.2d at 199
43 McVey v. Fredrickson, 226 Ill.App.3d 1082, 1083, 590 N.E.2d 996, 997 (1992).
44 Weybright v. Puckett, 262 Ill.App.3d at 608, 635 N.E.2d at 121 (1994).
45 226 Ill. App. 3d 1082, 590 N.E. 2d 996 (1992)
46 McVey, 226 Ill.App.3d at 1082-83, 590 N.E.2d at 996-97.
47 McVey, 226 Ill.App.3d at 1084, 590 N.E.2d at 997.
48 In re Marriage of Lindsey, 158 Ill.App.3d at 769, 511 N.E.2d 198 (1987
49 303 Ill. App. 3d 254, 707 N.E. 2d 735 (4th Dist. 1999)
50 Id. at 258.
51 Lulay v. Lulay, 193 Ill. 2d 455, 250 Ill. Dec. 758, 739 N.E.2d 521 (2000).
52 Lulay v. Lulay , 2000 Ill. LEXIS 1694, at page 1.
53 Id.
54 Id. At page 2.
55 Id. At page 12.
56 Id. At page 21.
57 Id. At page 28.
58 Id. At page 39.
59 Id. At page 42 and 43.
60 Wickham v. Byrne, 199 Ill. 2d 309, 263 Ill. Dec. 799, 769 N.E.2d 1 (April 18, 2002).
61 the facts of Langman v. Langman, the case that was consolidated with Wickham are not set forth in this article and can be found at 199 Ill. 2d 313.
62 199 Ill. 2d 309, 310
63 Id.
64 Id at 311
65 Id.
66 Id. at 312
67 Id.
68 Id.
69 Id.
70 See 177 Ill. 2d R. 315 (a).
71 199 Ill. 2d 309, 316
72 Id. at 317
73 Id.
74 Id.
75 Id.
76 Id. at 321
77 750 ILCS 5/607(b)(1).
78 Troxel , 530 U.S. at 64, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061, 2062 citing Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979).
79 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (reiterating the recognition that “the freedom of family life is a protected fundamental liberty interest”)
80 In re Smith , 137 Wash.2d 1, 6, 969 P.2d 21, 23-24 (1998); In re Troxel, 87 Wash.App. 131, 133, 940 P.2d 698, 698-699.
81 Troxel, 530 U.S. at 661.
82 Id.
83 See 87 Wash.App., at 133-134, 940 P.2d at 699.
84 137 Wash.2d at 6, 969 P.2d, at 23.
85 In re Smith , 137 Wn. 2d 1, 12, 969 P.2d 21, 26-27 (1998).
87 527 U.S. 1069 (1999).
88 750 ILCS 5/607 allowed only grandparents, great-grandparents and siblings to petition for visitation.
89 See Troxel v. Granville at page 67.
90 Id. at 68-69
91 Id. at page 69 citing Parham v. J.R. 444 U.S. 584, 99 S. Ct. 2493, 61 L.Ed.2d 101 (1979).
93 Id. at page 70
94 Id., at 535, 45 S.Ct. 571
95 Id., at 166, 64 S.Ct. 438.
97 Troxel at page 72.
98 See id. at 2065, 2067.
99 262 U.S. 390 (1923).
100 See Troxel, 120 S. Ct. at 2066-67 (supporting his opinion by discussing the Meyer case, 262 U.S. at 399, which held that parents have the right to raise their children free from government interference).
101 Id. at 2068 (stating that since the right to rear children is a fundamental right, the Court should apply a strict scrutiny standard to the Washington statute).
102 See id. (noting that there was no compelling interest in second guessing a fit parent’s decision regarding visitation with third parties).
103 . The dissents in this decision were delivered by Justices Scalia, Stevens, and Kennedy.
104 See Troxel, 120 S. Ct. at 2074 (noting that he is not willing to extend the types of protection previously granted, to this particular fact pattern).
105 Id. at 2070 (offering examples of how former caregivers, intimate partners, and foster parents would be able to petition the court for visitation).
106 See id. at 2072 (citing previous case law that limits the rights of parents).
107 49 See id. at 2074 (stating that parental authority over child rearing is an unenumerated right and a proper concern for legislators and elected officials, but outside the judicial authority granted by the Constitution).
108 See Troxel, 120 S. Ct. at 2074 (noting that he is not willing to extend the types of protection previously granted, to this particular fact pattern).
109 See id. at 2075 (reasoning that state courts are able to correct judicial errors faster than federal courts).
110 Id. (explaining that the State Supreme Court incorrectly assumed that the Constitution does not require a best interest standard with regards to the child in visitation proceedings).
111 Id. at 2077 (observing that the traditional notion of a nuclear family is not the standard in every family).
112 See Troxel, 120 S. Ct. at 2078 (arguing that courts should examine whether or not to apply the best interest standard before rejecting it as the State Supreme Court did).
113 See id. at 2079 (holding that more guidance is needed in order to expand the constitutional protection afforded parents).
114 Von Eiff vs. Azicri, 720 So.2d 510 (Sup. Ct. Fla. 1998).
115 Beagle vs. Beagle, 678 So. 2d. 1271 (Fla. 1996).
116 Id.
117 Hawk vs. Hawk , 855 S.W.2d 573 (Tenn. Sup. Ct. 1993)
118 Id.
119 Herbst vs. Sayre , 1998 WL 725192 (Okla. Sup. Ct. Oct. 13, 1998
120 Herbst vs. Sayre, 1998 WL 725192 (Okla. Sup. Ct. Oct. 13, 1998)
121 Id.
122 Id.
123 Brooks vs. Parkerson , 265 Ga. 189, 454 S.E. 2d 769 (Ga. Sup. Ct. 1995).
124 Id.
125 Id.
126 Skovv Wicker 32 P.3d 1122; 2001 Kan. LEXIS 611 (2001)
127 Rideout v. Riendeau 2000 ME 198; 761 A.2d 291; 2000 Me. LEXIS 206 (2000)
128 Linder v. Linder 2002 Ark. LEXIS 239 (April 25, 2002)
129 437 Mass. 649; 437 Mass. 649; 774 N.E.2d 1052, ; (2002)
130 2002 N.C. App. LEXIS 1580 (December 31, 2002)
131 Twenty states have restrictive visitation statutes, in which grandparents may petition for visitation only if a disruption in the child’s nuclear family exists, or if harm will occur if visitation is not allowed. The other states have permissive statutes under which the best interest of the child takes priority whether of not there is a disruption in the nuclear family.