In re Marriage of Mehring

• Citation: 324 Ill. App.3d 262,258 Ill.Dec. 28,755 N.E.2d 109
• Decision Date: 13 August 2001
• Docket Number: No. 5-00-0057.,5-00-0057.
• Parties: In re MARRIAGE OF Michael MEHRING, Petitioner, and Julie Mehring, Respondent-Appellant (Ella Mehring, Intervenor-Appellee).
• Court: United States Appellate Court of Illinois

755 N.E.2d 109

324 Ill. App.3d 262

258 Ill.Dec. 28

In re MARRIAGE OF Michael MEHRING, Petitioner, and

Julie Mehring, Respondent-Appellant (Ella Mehring, Intervenor-Appellee).

No. 5-00-0057.

Appellate Court of Illinois, Fifth District.

August 13, 2001.

Rehearing Denied September 12, 2001.

Lance B. Freezeland, Effingham, for Appellant.

Margaret J. Walsh, Strellis, Faulbaum, Walsh & Field, Belleville, for Appellee.

Presiding Justice CHAPMAN delivered the opinion of the court:

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

"War is much too serious to leave to the generals."¹

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

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

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

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

Even though the nuclear family may be of relatively recent vintage, it has been accepted as the norm for more than 100 years. Under the nuclear-family model, parents have decision-making powers over most elements of their children's lives. The decision-making power has been recognized as a fundamental right. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000). Although it is a fundamental right, it is not an absolute one. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

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

The existence of the foregoing list of sanctioned State interferences with parental rights establishes that parents' power over their children is far from absolute and implicitly raises this question: If all these interferences are allowed, what is the problem with the grandparental-visitation statute? The grandparental-visitation right provides:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent * * * of any minor child * * * if the court determines that it is in the best interests and welfare of the child * * *. * * * [A] petition for visitation privileges may be filed under this paragraph (1) * * * 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." 750 ILCS 5/607(b)(1) (West 2000).

This court ruled on a constitutional challenge to this statute in West v. West, 294 Ill.App.3d 356, 228 Ill.Dec. 794, 689 N.E.2d 1215 (1998). West reviewed the statutory provisions, along with the cases that had allowed visitation before the statute was passed, and concluded that the statute was both a codification and an expansion of grandparents' visitation rights. In addition, West held that the statute was constitutional because it was narrowly tailored to achieve the goal of maintaining and promoting a grandparent-grandchild relationship, a matter in which the State had a compelling interest.

Why then is this statute being challenged again? Because, the appellant replies, in the interim the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and the Illinois Supreme Court decided Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000). The first case held Washington State's grandparental-visitation statute unconstitutional. The second case held the Illinois statute unconstitutional under the particular circumstances of that case.

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

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

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

Second, the...