Grandparent Visitation in Illinois

The Grandparent Visitation Act of Illinois was written by attorney Michael K. Goldberg, of the Chicago law firm Goldberg Law Group. Mr. Goldberg successfully represented the defendant in Wickham v. Byrne, the 2002 Illinois Supreme Court case that invalidated the former grandparent visitation statute. He has testified on several occasions before the Illinois Senate and Illinois House of Representatives regarding the Grandparent Visitation Act, and has written and spoken extensively on the subject of grandparents’ rights.

This article provides a detailed analysis of the legal issues surrounding grandparents’ rights and originally appeared in the Southern Illinois University Law Journal. For introductory information for parents and grandparents, please see general answers to commonly asked questions. What follows is not legal advice, and a person interested in pursuing court ordered visitation under the new Grandparent Visitation Act should consult an attorney with any specific questions about his or her case. For a free consultation with Michael K. Goldberg to discuss your Illinois grandparent visitation questions, call (312) 930-5600 or send him an email at


… 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 Act was facially unconstitutional. … These cases, along with Wickham, Lulay and Troxel, will be used as a barometer for the future of court-imposed grandparent visitation in Illinois. … 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 new statute must include a presumption stating a parent is acting properly when deciding who his or her children should spend time with and a fit parent’s decision regarding grandparent visitation is in the child’s best interest. …



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 Act n1 was facially unconstitutional. n2 In the wake of the Wickham v. Byrne n3 holding (a 6-1 vote) and the strong pro-parent language contained therein, for a revised Illinois Grandparent Visitation Act to pass constitutional muster, it must shed the “best interest” standard and adopt the more stringent “harm to the child” standard. The standard will require 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 n4 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, to include the dramatic increase in the percentage of Americans who are grandparents. n5

[*786] The statistics reflect the changes to the nuclear family. In 1996, 28% of all children under the age of eighteen lived with only one parent. n6 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 four million children, or 5.6% of all children under the age of eighteen, lived in their grandparent’s home. n7 Furthermore, the 2000 census revealed a pertinent statistic in Illinois: 40% of the households in Illinois list grandparents as the primary caregivers for children. n8 These new developments in the composition of the American family have led to a less traditional role for grandparents with 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 this number is expected to grow to ninety-eight million in 2001. n9 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 deteriorates, 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, n10 are certainly due to the changing realities of the American family. 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 mandatory visitation with their grandchildren. n11 Also, the powerful influence of the elderly lobby led to a joint [*787] resolution of Congress in 1978 asking the President to proclaim a national Grandparents’ Day. n12 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.” n13 With the longevity, as well as the sheer [*788] number of grandparents increasing (becoming a more sizeable voting block) 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’ agenda. n14

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. 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, n15 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 because it was the first time since 1923 the Court directly considered the parents’ right to control the upbringing of their children. n16 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 which stated that parents “shall not interfere” with the visitation rights of the grandparents, appearing to create a presumption in favor of grandparent visitation. n17

Then, in October of 2000, the Illinois Supreme Court held state-mandated grandparent visitation unconstitutional as applied to the children of divorced parents, both of whom object to the visitation, seeing it as an infringement on the parents’ fundamental liberty interest in raising their children. n18 The Lulay court was not asked to determine whether the Grandparent Visitation Act was facially constitutional, leaving this issue open for another day. That day came on April 18, 2002, when the Illinois Supreme Court decided Wickham. This 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 more stringent “harm to the child” standard to [*789] determine whether to grant visitation. State courts have differed on whether the constitutionality of grandparent visitation statutes should be weighed against the harm standard for state intervention or merely against the “best interest of the child” standard. n19 Under the permissive “best interest” standard (the standard the former Illinois Act used) the court makes a determination as to whether grandparent visitation would be in the best interest of the child; under the “harm to the child” standard, courts grant the grandparents’ petition for visitation if only harm will occur to the child if visitation is not allowed.

The legislative history of the Illinois Grandparent Visitation Act indicates that the deterioration of the traditional nuclear family (especially the increased incidence of divorce) was a key factor leading to its creation. n20 Before Wickham, litigation often ensued when grandparents were suddenly denied visitation with children with whom they had previously enjoyed visitation. Post-Wickham, political groups such as the American Association of Retired Persons will likely push for a revised third-party visitation act in Illinois. However, such attempts will likely prove unsuccessful in light of the 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 existing before the Act and the cases Wickham, Lulay and Troxel the Illinois Legislature must reckon with if and when it attempts to introduce a revised and constitutionally sound act. Additionally, grandparent visitation cases from other states are reviewed. These cases, along with Wickham, Lulay and Troxel, will be used as a barometer for the future of court-imposed grandparent visitation in Illinois. The key factor to consider when drafting a revised grandparent visitation statute is the constitutional standard to use to determine whether the state may interfere with a fit parent’s decision not to allow visitation. The better view is [*790] the harm standard, whereby a grandparent must allege actual harm to the grandchild if visitation is denied.


A. The Unconstitutional Sections of the Illinois Grandparents Visitation Act

The following sections of the Act were declared facially unconstitutional:

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 . . . 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. n21

B. Legislative History of the Act and the Common Law before the Act

Prior to the General Assembly’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 if the parents forbade it. n22 In the absence of special circumstances, the granting of visitation privileges to a grandparent over objections of a parent constituted reversible [*791] error. n23 Any obligation parents may have had allowing visitation was moral and not legal. In Chodzko v. Chodzko, n24 the Circuit Court of Cook County allowed a maternal grandfather to intervene in the divorce proceeding between his daughter and her husband. Over the objection of the mother (his daughter) he received visitation privileges with his grandchildren. The supreme court reversed the order, determining the grandfather’s petition lacked allegations to support the conclusion that either parent was unfit or had forfeited the superior right to the custody and care of the children. n25 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. n26

Three such “special circumstance” cases were discussed in Chodzko. n27 They are as follows:

(1) 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. n28 The court in Solomon v. Solomon considered the father’s petition to allow his parents to visit the child during his absence. n29

(2) In Lucchesi v. Lucchesi, n30 the father of a minor child was killed in action during World War II. n31 The father’s will made his parents trustees of a fund for the benefit of his child. n32 The grandparents’ petition for visitation rights was [*792] allowed as a matter of justice, giving consideration to the death of the child’s father and the trusteeship of the grandparents. n33

(3) In Boyles v. Boyles, n34 the parents were divorced, and the mother was awarded custody. n35 Following the mother’s death, the father, who lived in Colorado, was awarded custody. n36 The maternal grandparents were allowed visitation for two weeks each summer and at other reasonable times. n37

The Grandparent Visitation Act was codified to recognize a grandparent’s right to seek visitation after the parents’ divorce. n38 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. n39 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. n40 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. n41 This Pandora’s Box was wisely closed less than one year after becoming the law. n42

C. Grandparent Visitation When Both Parents are Deceased

Grandparent visitation is also provided for in section 11-7.1 of the Probate Act. n43 These visitation rights may be granted if the natural or adoptive parents of the child are deceased. n44 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 [*793] 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. n45

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. n46 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. n47


Prior to Wickham and Lulay the most recent case to consider the constitutionality of the Illinois Grandparent Visitation Act was West v. West. n48 The appellate court held constitutional the grandparent visitation provision of the Marriage and Dissolution of Marriage Act because it did not violate the fundamental liberty rights of parents to the care and custody of their children. n49 Furthermore, the West court ruled the grandparent visitation statute did not violate the 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 arising after the death of one [*794] parent or divorce are not usually present in an intact family.” n50 The court continued, stating 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. n51

The West court determined the threshold considerations for 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. n52 The West court stated that though section 607’s best-interest standard does not guarantee grandparent visitation, “normally, the loving, caring, and reasonable grandparent should be given visitation, and, normally, this visitation should not be restricted . . .” n53 However, the court, foreshadowing the Wickham holding, stated that section 607(b) “should not be interpreted as equating [grandparents’] rights with parental rights.” n54 Parents, not grandparents, are responsible for the children’s custody, care, education, nurture, and support. n55 Grandparents do not step into their deceased child’s shoes in regard to visitation with the grandchildren under section 607. n56 As such, prior to Wickham, if grandparents were awarded visitation, visitation was typically much less than would be the case if the court were entertaining a petition for visitation from a non-custodial parent.

In McVey v. Fredrickson, n57 the paternal grandparents were awarded visitation one day per month with their grandchildren after their son’s post dissolution death. n58 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. n59 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. n60 The appellate court in McVey [*795] found that the trial court did not abuse its discretion in the amount of visitation it awarded. n61 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. n62

The case In re the Marriage of Lindsey n63 also illustrates the limited amount of visitation awarded to grandparents prior to Wickham. The paternal grandmother received visitation with her grandchildren one day per month to occur at her ex-daughter-in-law’s home. n64 The appellate court ruled the trial court did not abuse its discretion in fashioning the visitation order. n65 Even though the grandmother baby-sat the children prior to the dissolution, the trial court properly was concerned about the grandmother’s post-divorce hostility toward the children’s mother and with the grandmother’s possible counterproductive relationship with the grandchildren. n66

In In the Interest of Brittany Lee Gollahon v. Rebecca A. Gollahon n67 the appellate court affirmed the trial court’s decision to grant the grandparent of a deceased parent visitation with the grandchildren 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. n68 The appellate court agreed it was reasonable visitation even though the grandparent previously spent a great deal of time with the grandchildren. n69 The court stated it is appropriate for the children to spend much of their time with their mother in their “new” familial setting. n70

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. n71

[*796] IV. LULAY V. LULAY n72A. The Facts

Subsequent to Michael and Kiley Lulay’s divorce, they shared joint custody over their three minor children. n73 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 the Grandparent Visitation Act, seeking visitation with her three grandchildren. n74 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 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.” n75 The circuit court denied the parents’ motion to dismiss. n76 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 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 a grandparent who seek such visitation from their own child? (2) If so, is such a statute constitutional? n77 The court also permitted the Attorney General of the State of Illinois to intervene to defend the constitutionality of section 607(b)(1). n78

B. The Decision

After citing the relevant portions of Section 607(b)(1), “with Troxel in mind,” n79 the Lulay court ruled 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 unconstitutional. n80 The court held section 607(b)(1), to be an unconstitutional infringement on Michael and Kiley Lulay’s [*797] fundamental liberty interest in raising their children. n81 It found the well-established fundamental right of parents to raise their children encompassed the right to determine with whom their children should associate. n82 Because the court held the application of section 607(b)(1) to the Lulay situation unconstitutional, the justices chose not to address the father’s argument that section 607(b)(1) is facially unconstitutional. n83 However, as Justice Heiple argued in his concurring opinion, the failure to address the constitutionality of the entire Act left open the possibility that other grandparents, under a slightly different set of facts, might successfully petition for grandparent visitation under 607(b)(1). n84 Justice Heiple went on to say that the majority opinion in Lulay is at odds with Troxel, because after Lulay it appears, under section 607, where one parent dies, a grandparent can petition for visitation, and if the court finds that visitation is in the best interests of the child, can grant the petition. n85 He correctly stated this case is Troxel by a different name and is precisely the remedy the Supreme Court held unconstitutional. n86 The rationale of Troxel clearly dictates that section 607 is facially unconstitutional. n87


A. The Facts n88

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. n89 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. n90 Virginia, however, wanted more time with her granddaughter and asked Paul for unsupervised overnight [*798] visitation. n91 Paul felt overnight visitation was inappropriate, but agreed to continue to drive his daughter to Virginia’s home when his schedule permitted. n92 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 section 607 (b)(1) of the Illinois statute. n93

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. n94 The trial court denied the motion. n95

At the hearing on Virginia’s petition, the court heard testimony from Paul, Virginia, and J.B.’s pediatrician. n96 Prior to ruling, the court stated “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.” n97 However, the court found 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. n98 Thus, the court denied overnight visitation, but ordered supervised visitation with the minor child at Paul’s home four hours a week. n99 The trial court appointed a child representative and set the case for status in 60 days. n100 Following the hearing, Paul filed a motion to dismiss the petition, it was denied. Paul then filed an application for an interlocutory appeal under Illinois Supreme Court Rule 308, this too was denied. n101 The Illinois Supreme Court granted Paul’s petition for leave to appeal. n102

[*799] B. The Wickham Holding: The Best Interest Standard is Not Enough

The Wickham court found sections 607(b)(1) and (3) facially unconstitutional. n103 The court began its analysis by recognizing 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.” n104 It continued by finding the Due Process Clause grants “heightened protection against government interference with certain fundamental rights and liberty interests.” n105 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. n106 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. n107 The court determined that the issue involved in Wickham, the visitation with grandparents, did not involve a threat to the health, safety or welfare of the children. n108 The court listed examples of “limited instances” justifying state interference with parental child rearing rights such as: testing for phenylketonuria at birth; n109 required immunization for diphtheria, pertussis, and tetanus; n110 required hearing and visual examinations; n111 and prohibited child labor. n112 The court ruled that refusing grandparents visitation with their grandchildren does not involve a threat to the health, safety, or welfare of children. n113 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. n114

[*800] The Wickham court recognized that, in most cases, the relationship between a child and his or her grandparents is a nurturing, loving relationship providing a vital connection to the family’s history and roots. n115 However, the Court added:

As 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. n116

The Wickham Court found a “flaw” in the Grandparent Visitation Act similar to the Washington statute at issue in Troxel. Both permitted visitation if the court determined that placing the parent on equal footing with the party seeking visitation rights was in the best interests and welfare of the child. n117 The Act did not define the standard, nor did it specify the criteria a court should use to apply it. Frequently, lawyers for the grandparents have directed courts to look to 750 Illinois Compiled Statute 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 provision in 750 Illinois Compiled Statute 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. n118 The Wickham court found the lack of such criteria pivotal in its ruling, determining a trial court must presume that fit parents act in the best interests of their children. n119


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 could not draw any bright line rules to determine if third parties can petition a court for visitation. However, the court has generally seen as fundamental and protected under the Constitution the parental right to raise their children as they see fit. n121

A. The Troxel Facts n122

The unmarried parents in Troxel had two daughters. While living together, the father regularly brought the children to visit with his parents. Sadly, the father committed suicide in May of 1993. Although the Troxels continued to see their grandchildren on a regular basis immediately after their son’s death, by October 1993 the mother informed the Troxels she wished to limit their visitation to one short visit per month. In December 1993, the grandparents filed a petition to obtain the right to visit with their grandchildren. n123 The grandparents filed their petition under two Washington statutes, though only one was at issue in the case. n124 Section 26.10.160 (3) provided that:

any 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. n125

At trial, the grandparents requested two weekends of overnight visitation per month and two weeks of visitation each summer. n126 The trial court granted them visitation one weekend per month, one week during the summer and four [*802] hours on both of the petitioning grandparents’ birthdays. n127 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. n128 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. n129 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 the statute too broad because it allowed “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. n130 Elaborating on this point, the court held that a trial court should not substitute its judgment for that of the parents when deciding visitation issues. The U.S. Supreme Court granted certiorari in 1999. n131

B. The United States 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 leaving many questions unanswered. Most significantly the court failed 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 was “breathtakingly broad” by permitting “any person” to petition the court for visitation. n132 It 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. n133 Furthermore, the court ruled that 26.10.160(3) exceeds the bounds of the Due Process Clause by not requiring 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. n134 The court [*803] determined there is a presumption that fit parents act in their children’s best interests. n135

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. n136

C. Due Process and Fundamental Rights Cases Cited in Troxel

The Troxel court found that parents’ liberty interest in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the court. n137 More than 75 years ago, in Meyer v. Nebraska, n138 the court found the “liberty” of 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, n139 the court again held the “liberty of parents and guardians” included the right” to direct the upbringing and education of children under their control.” The court explained in Pierce that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the [*804] right, coupled with the high duty, to recognize and prepare him for additional obligations.” n140 The Court returned to the subject in Prince v. Massachusetts, n141 “again confirming a constitutional dimension to the right of parents to direct the upbringing of their children.” n142 The court wrote, “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.” n143

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 noted 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. Many statutes were listed by the court. n144

While the court stopped short of publishing a ruling which could be uniformly applied to any state statutes concerning grandparent visitation, the court did provide enough insight into their reasoning to provide the Illinois Courts and Legislature with some important clues for 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. n145 However, Justice Souter’s opinion reiterated the discussion in Meyers v. Nebraska n146 and other relevant Supreme Court cases arguing the decision of the Washington Supreme Court should be affirmed in its entirety. n147

[*805] Justice Thomas argued for the application of strict scrutiny. n148 Applying this standard, Justice Thomas concluded the State of Washington failed to prove any governmental interest in allowing non-parent visitation with the child. n149

E. Dissenting Opinions

Along with the three majority decisions, there were three separate dissenting opinions. n150 The dissenting Justices agreed with the plurality in refusing to reject the statute as unconstitutional on its face. Justice Stevens argued that the case should never have been granted certiorari. n151 He continued by stating the statute sweeps too broadly by allowing “any person” to request visitation of the child. n152 However, Stevens does conclude that previous case law has limited a parent’s supposed fundamental liberty interest. n153

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. n154 In hearing this case, Justice Scalia stated that he was not willing to extend past case law protecting parents’ privacy rights to this case. n155 Concluding his dissent, Scalia determined that this issue is best decided in state courts rather than federal courts. n156

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 [*806] denied. n157 Justice Kennedy argued that the State Supreme Court rejected the best interest standard because it incorrectly assumed the parents have always been the “primary caregivers” of the child and third parties have no “established relationship with the child.” n158 He also argued that the best interest of the child standard should be used in cases regarding visitation with third parties. n159 Finally, rather than rejecting this statute on its face, Justice Kennedy suggested that this question is better answered by state courts. n160


A. State Supreme Court and Appellate Cases

1. Florida

Even though Florida has a large elderly population, the Florida Supreme Court has struck two fatal blows to its state grandparent visitation statute, completely dismantling the Act based on unconstitutional grounds. n161 In its first decision, the Florida Supreme Court struck down a portion of the statute permitting grandparent visitation in intact families. n162 In another case, Von Eiff, the Florida Supreme Court was confronted with a portion of the statute permitting grandparent visitation where one of the parents is deceased. The 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. n163

[*807] 2. Tennessee

The Tennessee Supreme Court in Hawk vs. Hawk, n164 said that “we too agree that neither the legislature nor a court may properly interfere in parenting decisions absent significant harm to the child from those decisions.” n165 “Noting the relations which exist between parent and child are sacred ones,” n166 the Hawk Court found:

the right to the society of the child exists in its parents; the right to rear it, to its custody, to its tutorage, the shaping of its destiny, and all of the consequences that naturally follow from the relationship are inherently in the natural parents, and they cannot be deprived of these rights without notice, and upon some ground which affects materially the future of the child. n167

Absent some harm to the child, the Court found that the state lacks a sufficiently compelling justification for interfering with this fundamental right. n168

3. Oklahoma

The Oklahoma Supreme Court, also found its state grandparent visitation statute to be unconstitutional “under the existing facts” of such a case. n169 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. n170 In this case the parties were living together as an intact family. n171 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.” n172 The court stated:

[It] is important to recognize that mandating the introduction of a third party, even a grandparent, into a family unit is state action limiting the parents’ liberty. Because it is long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due [*808] Process Clause of the Fourteenth Amendment[,] as well as Oklahoma’s own constitution, the state’s interest must be sufficiently compelling to warrant such a limitation and infringement.” n173

Therefore, the court concluded that “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. n174

4. Georgia

The Oklahoma Supreme Court relied heavily on the Georgia Supreme Court’s decision in Brooks vs. Parkerson. n175 The Supreme Court of Georgia struck down the entire grandparent visitation statute as violative of the parents’ rights under the Federal Constitution. n176 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.” n177 The Georgia Supreme Court held that its statute fell short because it failed “to require a showing of harm before visitation can be ordered.” n178

5. Kansas

In Skovv v. Wicker, n179 the Kansas Supreme Court concluded that the district court erred in holding its grandparent visitation statute unconstitutional. The Supreme Court stated that the grandmother and great-grandparents had the burden of proving two things. First, visitation was in the child’s best interest and, second, a substantial relationship with the grandchildren existed. n180 Furthermore the court required the trial court to give special weight to the fundamental presumption that a fit parent will act in the best interests of his or her child. n181

[*809] 6. Maine

In Rideout v. Riendeau, n182 the Maine Supreme Court found the grandparent visitation statute was narrowly tailored to serve the compelling state interest of addressing children’s relationships with non-parental caretakers, and thus did not violate the Due Process Clause or constitutional rights of parents. n183 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, and holding that 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. n184

7. Arkansas

At issue in Linder v. Linder, n185 was the constitutionality of the Arkansas Grandparental Visitation Act. n186 Even though the Act gives no presumption to the parent’s wishes, and even though 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. n187 Prior to the death of the child’s father, the paternal grandparents saw the child frequently. n188 After the death of the child’s father, the mother was resistant to allowing the paternal grandparent’s visitation. n189 The Chancery court, finding the mother a fit parent, still granted the paternal grandparent visitation rights and refused to allow the mother to move to another state. n190 The mother fled the jurisdiction for approximately a year, then returned and appealed the Chancery Court’s order based on the constitutionality of the Grandparental Visitation Act. n191

[*810] 8. Massachusetts

In Blixt v. Blixt, n192 the mother was living apart from the adjudicated father of the child. n193 The maternal grandfather sought visitation rights to the child. n194 The trial court, agreeing with the mother’s claim, found the grandparent visitation rights statute unconstitutional. n195 On appeal, the court determined the statute survived a facial challenge on due process grounds and did not violate equal protection insofar as the mother’s statutory classification was concerned. n196 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 a child who had experienced a disruption in the family unit from harm. n197 Because the classification narrowed the impact of the statute while furthering a compelling state interest, the court held it survived the equal protection challenge. n198 Therefore, the action should not have been dismissed. n199

9. North Carolina

In McDuffie v. Mitchell, n200 a North Carolina Appellate Court affirmed the order dismissing the grandmother’s complaint for court imposed visitation. n201 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. n202 The grandmother asserted her right to visit with the children. n203 The appellate court held, however, the grandmother had no right to visitation because there were no ongoing custody proceedings and there was no showing of the father’s unfitness. n204 The grandmother failed to allege facts to establish unfitness, neglect, or abandonment on the part of the [*811] father, or any other type of conduct so egregious that it would constitute forfeiture of the father’s constitutionally protected status as a parent. n205

10. Connecticut

In the recent decision of Roth v. Weston, n206 the Connecticut Supreme Court held that, in light of the presumption of parental fitness under Troxel, parents should not be faced with unjustified intrusions into their decision making in the absence of specific allegations and proof of a relationship of a parent-like relationship with the person with whom contact is desired. n207

The Roth court concluded the grandparent visitation statute was unconstitutional as applied. n208 The trial court, pursuant to the statute, permitted third-party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence the children would suffer actual, significant harm if deprived of the visitation. n209

11. California

In Zasueta v. Zasueta, n210 the father committed suicide leaving behind two daughters. n211 The mother felt visitation between her children and their paternal grandparents wasn’t appropriate at the time. n212 The paternal grandparents disagreed and petitioned the court. n213 The court granted visitation. n214 On appeal, the mother of the minor children argued that Cal. Fam. Code P3102 was unconstitutional because it infringed upon her fundamental parenting rights protected by the Due Process Clause of the Fourteenth Amendment. n215 The appellate court ruled the trial court erred by not giving the mother’s preference any weight in determining visitation. n216 This in turn violated her fundamental parenting right to made decisions regarding the custody, care and control of her child. n217 Relying heavily upon [*812] Troxel, the appellate court reversed judgment and remanded it back to the trial court with specific directions to vacate its order granting visitation to the paternal grandparents. n218

12. Alabama

In Beck v. Beck, n219 the mother and father divorced. n220 Both received joint custody of the minor child with the father having primary residential custody. n221 In 1997, the father sought and was granted sole custody of the child. n222 Although the father never denied the maternal grandparents’ visitation, in 2000 the maternal grandparents motioned the court for grandparent visitation. n223 Visitation was granted. n224 The father appealed, objecting to the extent of visitation granted. n225 The appellate court reversed the judgment and remanded the case. n226 The court found a very real difference existed between requiring a showing of harm, or substantial harm, in the absence of a requested grandparent visitation, and a showing that such visitation would merely be in the “best interest” of a child. n227 Section 30-3-4.1(b)of the 1975 Alabama Code requires only a showing that the requested court-ordered visitation would be in the “best interest” of the child. In R.S.C. v. J.B.C., n228 a showing merely of the child’s “best interest” is not enough to satisfy the United States Constitution. n229

13. Kentucky

In Scott v. Scott, n230 the court of appeals vacated an order granting grandparents visitation and remanded the case for further proceedings at the trial court. Appellant parents appealed pursuant to Ky. Rev. Stat. Ann. § 405.021, arguing the order was an unconstitutional interference with their right to raise their child as they saw fit. The trial court presumed the child would [*813] benefit from grandparent contact and grandchildren and grandparents hold a special bond that could not be denied. By granting the visitation contrary to the parents’ wishes, the appellate court held that it infringed on the parents’ fundamental right as parents to raise their daughter as they saw fit. n231

14. Missouri

In a recent opinion filed in the Court of Appeals of Missouri, Western District, the appellate court affirmed an order granting grandparent visitation that was awarded at the trial level pursuant to Mo. Rev. Stat. P452.402 (2000). The court found in Barker v. Barker, n232 that the grandchildren had regular visitation with their paternal grandparents until the father became angry with his brother and the grandparents over a matter unrelated to the grandchildren’s health and well-being. After being denied visitation, the grandparents filed for and received visitation with the minor children. The parents appealed, challenging the constitutionality of Mo. Rev. Stat. P452.402 (2000) because it relies on the “best interest of the child” standard which infringes their Fourteenth Amendment due process rights to make decisions concerning the care, custody and control of their children. n233 The appellate court affirmed the trail court judgement, holding: (1) the trial court did not lack jurisdiction to grant relief under Mo. Rev. Stat. P452.402.1 (2000), because the statue required only a 90-day period elapse before a visitation order was entered; (2) Mo. Rev. Stat. P452.402.1 (2000) was constitutional; and (3) the trial court did not err in granting unrestricted visitation. n234 The parents’ concerns regarding grandparent visitation were not legitimate based on the evidence and, therefore, the Court exercised its authority to deny the restrictions the parents requested because the parents didn’t restrict visitation until after a family argument arose which was unrelated to the grandchildren’s health and well-being. n235

15. Indiana

The Court of Appeals of Indiana in McCune v. Frey n236 said that, “the burden is on the grandparent, as the petitioning party, to demonstrate by a [*814] preponderance of the evidence that court-ordered visitation is in the children’s best interest.” n237 In this case, the trial court granted the paternal grandparents’ petition, subsequent to their son’s divorce, which awarded visitation with their grandchild. The appellate court reversed, deciding the trial court failed to find that visitation was in the minor child’s best interest because evidence was shown that the paternal grandparent was abusive towards the child.

B. Criteria Enumerated in Other State Visitation Statutes

Many third party visitation statutes set forth criteria for the trial court to evaluate when making a visitation determination. Below is a list of some of those criteria. The General Assembly must put most, if not all, of these elements into any future Illinois Grandparent Visitation Act:

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 the child will receive.

3. The age of the child.

4. The age, as well as the 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 the rearing of the child as the responsibility of the parent.

11. The willingness of the grandparents not to interfere with the parent’s manner of child rearing.

[*815] Furthermore, any revised Act must contemplate only minimal intrusion into family relationships, and must only permit a petition for visitation if there is or has been a child custody case or a case concerning the allocation of parental responsibilities. The new statute must include a presumption stating a parent is acting properly when deciding who his or her children should spend time with and a fit parent’s decision regarding grandparent visitation is in the child’s best interest.


Both Supreme Court precedent and our national tradition suggest that a family member’s right to participate in child rearing and education is one of the most basic and important associational rights protected by the Constitution. n238 In 1997, the United States Supreme Court stated the “Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inclucate and pass down many of our most cherished values, moral and cultural.” n239 The Supreme Court has recognized that some of the most important personal bonds necessary for the protection of individual freedom “are those that attend the creation and sustenance of a family–[including] the upbringing and education of children.” n240

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 is at issue, Troxel left open as many questions as it answered. Neither decision provides a complete blueprint for devising a visitation act to withstand constitutional muster. Significantly, the vast majority of the states have viable grandparent visitation statutes, n241 and it is a good bet that a new version of 607(b)(1) will be proposed to the Illinois Legislature. [*816] 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 without having to show a parent’s unfitness or potential harm to the child. As indicated by the Troxel and Wickham courts these omissions were fatal to the Act’s survival, contravening the traditional presumption 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 a fit parent must be given deference and 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 up to the Legislature to draft a Grandparent Visitation Act that comports with the holdings in Wickham, Lulay and Troxel.


n1 750 ILL. COMP. STAT. 5/607 (b)(1) and (3) (2002).

n2 Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002).

n3 Id.

n4 750 ILL. COMP. STAT. 5/607 (2002).

n5 Approximately seventy-five percent of all older Americans are grandparents. S. Con. Res. 40, 98th Cong. (1983), reprinted in 10 Fam. L. Rep. 3027 (Bureau of National Affairs 1984).

n6 6 Bureau of Census, U.S. Dept. of Commerce, Current Population Reports, 1997 Population Profile of the United States at 27 (1998).

n7 Troxel v. Granville, 530 U.S. 57 (2000) (citing Bureau of Census, U.S. Department of Commerce, Current Population Reports, Marital Status and Living Arrangements: March 1998).

n8 CHICAGO SUN-TIMES, Inside the Census, May 15, 2002 at 6.

n9 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 and predicted to be at 98 million in 2020. STAFF OF SUBCOMM. ON HUMAN SERVS. OF HOUSE SELECT COMM. ON AGING, 102D CONG., GRANDPARENTS: NEW ROLES AND RESPONSIBILITIES 1 (Comm. Print 1992).

n10 750 ILL. COMP. STAT. 5/607.

n11 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 (2002) (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, 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).

n12 National Grandparents Day Designation Authorization, Pub. L. No. 95-325, 92 Stat. 398 (1978).

n13 Andrew J. Cherlin & Frank F. Furstenberg, Jr., THE NEW AMERICAN GRANDPARENT 4-5 (Basic Books, Inc. 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.” STAFF OF SUBCOMM. ON HUMAN SERVS. OF HOUSE SELECT COMM. ON AGING, 102D CONG., GRANDPARENTS: NEW ROLES AND RESPONSIBILITIES 1 (Comm. Print 1992) (hereinafter Hearings).

n14 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, 323 n. 11 (2001).

n15 530 U.S. 57 (2000).

n16 Liza Weiman Hanks, Grandparent Visitation Rights, at (last visited Jan. 10, 2003).

n17 750 ILL. COMP. STAT. 607(b)(3).

n18 Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000).

n19 See Weiss v. Varndore, 541 S.E.2d 448 (Ga. Ct. App. 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 “permitted 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 “conflicted 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.”).

n20 Towne v. Cole, 133 Ill. App. 3d 380, 384-386, 478 N.E.2d 895, 898-900 (2d Dist. 1985).

n21 750 ILL. COMP. STAT. 5/607 (b)(1) and (3).

n22 See Boyles v. Boyles, 14 Ill. App. 3d 602, 302 N.E.2d 199 (3rd Dist. 1973); Lucchesi v. Lucchesi, 330 Ill. App. 506, 71 N.E.2d 920(1st Dist. 1947); Solomon v. Solomon, 319 Ill. App. 618, 49 N.E.2d 807 (1st Dist. 1943).

n23 Chodzko v. Chodzko, 66 Ill. 2d 28, 360 N.E.2d 60 (1976).

n24 Id.

n25 Id. at 34, 360 N.E.2d at 63.

n26 Id. at 34-35, 360 N.E.2d at 63.

n27 Id. at 28, 360 N.E.2d 60.

n28 Solomon v. Solomon, 319 Ill.App. 618, 619, 49 N.E.2d 807 (1st Dist. 1943).

n29 319 Ill. App. 618, 49 N.E.2d 807 (1943).

n30 330 Ill. App. 506, 71 N.E.2d 920 (1st Dist. 1947).

n31 Id. at 507, 71 N.E. 2d at 920.

n32 Id. at 508, 71 N.E.2d at 920.

n33 Id. at 512, 71 N.E.2d at 922.

n34 14 Ill. App. 3d 602, 302 N.E.2d 199 (3d Dist. 1973).

n35 Id. at 603, 302 N.E.2d at 200.

n36 Id.

n37 Id.

n38 40 ILL .REV. STAT. § 607(b) (West 1981) (amended 1982).

n39 40 ILL. REV. STAT. § 607(b) (West 1983) (amended 1985).

n40 40 ILL. REV. STAT. § 607(b) (West 1985) (amended 1989).

n41 40 ILL. REV. STAT. § 607(b) (West 1989) (amended 1991).

n42 Illinois Marriage and Dissolution of Marriage Act, 1991 Ill. Laws Pub. Act 86-1452, § 607 eff. July 1, 1991; 40 ILL. REV. STAT. § 607(b) (West 1991).

n43 755 ILL. COMP. STAT. 5/11-7.1 (2000).

n44 Id. at 5/11-7.1(a).

n45 Id.

n46 Id.

n47 Id.

n48 294 Ill. App. 3d 356, 689 N.E. 2d 1215 (5th Dist. 1998).

n49 Id. at 364, 689 N.E.2d at 1221.

n50 Id. at 363, 689 N.E.2d at 1220-1221.

n51 Id., 689 N.E.2d at 1220.

n52 Id. at 360, 689 N.E.2d at 1218.

n53 In re the Marriage of Lindsey, 158 Ill. App. 3d 769, 770, 511 N.E.2d 198, 199 (4th Dist. 1987).

n54 Id. at 771, 511 N.E.2d at 199.

n55 McVey v. Fredrickson, 226 Ill. App. 3d 1082, 1083, 590 N.E.2d 996, 997 (3d Dist. 1992).

n56 Weybright v. Puckett, 262 Ill. App. 3d at 605, 635 N.E.2d 119, 121 (4th Dist. 1994).

n57 226 Ill. App. 3d 1082, 590 N.E. 2d 996 (3d Dist. 1992).

n58 Id. at 1083, 590 N.E. 2d at 997.

n59 Id.

n60 Id.

n61 Id. at 1084, 590 N.E.2d at 997.

n62 Id.

n63 158 Ill. App. 3d 769, 511 N.E.2d 198 (4th Dist. 1987).

n64 Id. at 770, 511 N.E.2d at 199.

n65 Id.

n66 Id. at 770-771, 511 N.E.2d at 199.

n67 303 Ill. App. 3d 254, 707 N.E. 2d 735 (4th Dist. 1999).

n68 Id. at 255, 707 N.E.2d at 736.

n69 Id. at 258, 707 N.E. 2d at 738.

n70 Id.

n71 Lulay v. Lulay, 193 Ill. 2d 457, 739 N.E. 2d 521 (2000).

n72 Id.

n73 Id., 739 N.E. 2d at 523.

n74 Id. at 457-58, 739 N.E. 2d at 523.

n75 Id. at 458, 739 N.E. 2d at 523.

n76 Id.

n77 Id.

n78 Id.

n79 Id. at 463, 739 N.E. 2d at 526.

n80 Id. at 469, 739 N.E. 2d at 529.

n81 Id. at 480, 739 N.E.2d at 534.

n82 Id. at 473-474, 739 N.E. 2d at 531.

n83 Id. at 480, 739 N.E. 2d at 534.

n84 Id., 739 N.E.2d at 534-35.

n85 Id. at 481, 739 N.E.2d at 535.

n86 Id.

n87 Id.

n88 Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002).

n89 Id. at 310, 769 N.E. 2d at 2.

n90 Id. at 311, 769 N.E.2d at 2.

n91 Id.

n92 Id.

n93 Id.; 750 ILL. COMP. STAT. 5/607(b)(1) (West 2000).

n94 Wickham, 199 Ill. 2d at 310, 769 N.E. 2d at 2; U.S. CONST., amend. XIV § 1; ILL. CONST., art. I, § § 1, 2.

n95 Wickham, 199 Ill. 2d at 310, 769 N.E. 2d at 2.

n96 Id. at 312, 769 N.E. 2d at 2.

n97 Id.

n98 Id. at 32, 769 N.E. 2d at 3.

n99 Id.

n100 Id.

n101 Id.

n102 Id.

n103 Id. at 321, 769 N.E.2d at 8.

n104 Id.; U.S. Const., amend. XIV, § 1

n105 Wickham, 199 Ill. 2d at 316, 769 N.E. 2d at 5.

n106 Id.

n107 Id. at 317, 769 N.E. 2d at 6.

n108 Id.

n109 Id.; 410 ILL. COMP. STAT. 240/1 (2000).

n110 Id.; 410 ILL. COMP. STAT. 315/2 (2000).

n111 Id.; 410 ILL. COMP. STAT. 205/1 et seq. (2000).

n112 Id.; 820 ILL. COMP. STAT. 205/1 et seq. (2000).

n113 Wickham, 199 Ill.2d at 317, 769 N.E.2d at 6.

n114 Id.

n115 Id. at 321, 769 N.E.2d at 8.

n116 Id.

N117 750 ILL. COMP. STAT. 5/607(b)(1) (2002).

n118 See Footnote 94, supra.

n119 Troxel v. Granville, 530 U.S. 57, 64 (citing Parham v. J.R., 442 U.S. 584 (1979)).

n120 530 U.S. 57 (2000).

n121 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (retiterating the recognition that “the freedom of family life is a protected fundamental liberty interest.”).

n122 In re Troxel, 940 P.2d 698 (Wash. Ct. App. 1997).

n123 In re Smith, 969 P.2d 21, 23-24 (1998); In re Troxel, 940 P.2d 698, 698-699 (Wash. Ct. App. 1997).

n124 Wash. Rev. Code § § 26.09.240 and 26.10.160 (3) (1994) (Section 26.10.160 (3) was declared unconstitutional by Troxel, and is no longer in effect).

n125 WASH. REV. CODE § 26.10.160 (3) (1994)(section 26.10.160 (3) was declared unconstitutional by Troxel and is no longer in effect).

n126 940 P.2d at 699.

n127 969 P.2d at 23.

n128 In re Troxel, 940 P.2d at 701.

n129 Id.

n130 In re Smith, 969 P.2d 21, 26 (Wash. 1998).

n131 Troxel, 530 U.S. at 63 (1979).

n132 Id. at 73 (750 ILL. COMP. STAT. 5/607 allowed only grandparents, great-grandparents and siblings to petition for visitation).

n133 Id. at 72-73.

n134 Id. at 68-69.

n135 Id. at 69 (citing Parham v. J.R. 444 U.S. 584 (1979)).

n136 Id. at 70; 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.

n137 Id. at 65.

n138 262 U.S. 390, 399, 401(1923).

n139 268 U.S. 510, 534-535, (1925).

n140 Id. at 535.

n141 321 U.S. 158 (1944).

n142 Id. at 166.

n143 Id.

n144 Troxel at 71-72; 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”).

n145 Id. at 75-80.

n146 262 U.S. 390 (1923).

n147 Troxel, 530 U.S. at 79 (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).

n148 Id. at 80 (stating that since the right to rear children is a fundamental right, the court should apply a strict scrutiny standard to the Washington statute).

n149 Id. (noting that there was no compelling interest in second guessing a fit parent’s decision regarding visitation with third parties).

n150 The dissents in this decision were delivered by Justices Scalia, Stevens, and Kennedy.

n151 See Troxel, 530 U.S. at 80 (noting that he is not willing to extend the types of protection previously granted, to this particular fact pattern).

n152 Id. at 85 (offering examples of how former caregivers, intimate partners, and foster parents would be able to petition the court for visitation).

n153 Id. at 87-88 (citing previous case law that limits the rights of parents).

n154 Id. at 92-93 (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).

n155 Id. at 92 (noting that he is not willing to extend the types of protection previously granted, to this particular fact pattern).

n156 Id. at 93 (reasoning that state courts are able to correct judicial errors faster than federal courts).

n157 Id. at 95 (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).

n158 Id. at 98 (observing that the traditional notion of a nuclear family is not the standard in every family).

n159 Id. at 99 (arguing that courts should examine whether or not to apply the best interest standard before rejecting it as the State Supreme Court did).

n160 Id. at 102 (holding that more guidance is needed in order to expand the constitutional protection afforded parents).

n161 Von Eiff vs. Azicri, 720 So. 2d 510 (Fla. 1998).

n162 Beagle vs. Beagle, 678 So. 2d. 1271 (Fla. 1996).

n163 Id.

n164 855 S.W.2d 573 (Tenn. 1993).

n165 Id. at 578.

n166 Id.

n167 Id.

n168 Id. at 582.

n169 Herbst vs. Sayre, 971 P.2d 395 (Okla. 1998).

n170 Id. at 396.

n171 Id.

n172 Id. at 398.

n173 Id. at 398-399.

n174 Id. at 398.

n175 454 S.E. 2d 769 (Ga. 1995).

n176 Id. at 770.

n177 Id. at 773.

n178 Id.

n179 32 P.3d 1122 (Kan. 2001).

n180 Id. at 1125.

n181 Id. at 1127.

n182 761 A.2d 291 (Me. 2000).

n183 Id. at 291.

n184 Id. at 299.

n185 72 S.W. 3d 841 (Ark. 2002).

n186 ARK. CODE ANN. § 9-13-103 (Michie 2002).

n187 Linder, 72 S.W. 3d at 841.

n188 Id. at 844.

n189 Id.

n190 Id. at 845.

n191 Id. at 846-47.

n192 774 N.E.2d 1052 (Mass. 2002).

n193 Id. at 1055.

n194 Id.

n195 Id. at 1056.

n196 Id. at 1062.

n197 Id.

n198 Id.

n199 Id.

n200 573 S.E. 2d 606 (N.C. Ct. App. 2002).

n201 Id. at 609.

n202 Id at 607.

n203 Id.

n204 Id. at 608.

n205 Id. at 608-09.

n206 789 A.2d 431 (Conn. 2002).

n207 Id. at 451.

n208 Id. at 452.

n209 Id. at 451.

n210 126 Cal. Rptr. 2d. 245 (Cal. Ct. App. 2002).

n211 Id. at 246.

n212 Id. at 247.

n213 Id. at 246.

n214 Id. at 249.

n215 Id. at 251.

n216 Id. at 253.

n217 Id. at 255.

n218 Id.

n219 No. 2010402, 2003 Ala. Civ. App. LEXIS 3 (Ala. Civ. App. Jan. 10, 2003).

n220 Id.

n221 Id.

n222 Id.

n223 Id.

n224 Id.

n225 Id.

n226 Id. at *11.

n227 R.S.C. v. J.B.C., 812 So. 2d 361 (Ala. Civ. App. 2001).

n228 812 So. 2d 361 (Ala. Civ. App. 2001).

n229 Id. at 371.

n230 80 S.W.3d 447 (Ky. Ct. App. 2002).

n231 Id. at 451.

n232 No. WD 59968, 2003 WL 723295 (Mo. App. W.D. Oct. 8, 2002).

n233 Id. at *3.

n234 Id. at *4.

n235 Id. at *6.

n236 783 N.E.2d 752 (Ind. 2003).

n237 Id. at 758.

n238 Cf. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (plurality opinion) (“Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”) (quoting Boddie v. Connecticut, 401 U.S. 371, 376 (1971)) (internal punctuation omitted) (emphasis added).

n239 Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1997).

n240 Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). (citing Smith v. Org. of Foster Families, 431 U.S. 816 (1977)).

n241 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 or not there is a disruption in the nuclear family.

Goldberg Law Group has been involved in the practice of family law for over 30 years. We are committed to representing our clients in matters of divorce, custody, visitation (including grandparent visitation issues), and child support post decree matters. In order to provide our clients with the best representation possible, the attorneys at Goldberg Law Group are involved in the local and state family law bar associations and they all keep abreast of relevant legislative updates in the field. We pride ourselves on our reputation for integrity and honesty. It is our goal to assist our clients and their families in an often emotional and confusing time. At Goldberg Law Group you will find a staff of knowledgeable attorneys who are sensitive to the issues involved with family law related litigation.