In re MMD, No. 3-03-0231.

CourtUnited States Appellate Court of Illinois
Citation800 N.E.2d 831,279 Ill.Dec. 543,344 Ill. App.3d 345
Decision Date20 November 2003
PartiesIn re the Matter of M.M.D., a Minor (Christopher K. Johnson, Petitioner-Appellant, v. Christopher and Sue Duncan, Respondents-Appellees).
Docket NumberNo. 3-03-0231.

800 N.E.2d 831
344 Ill.
App.3d 345
279 Ill.Dec.
543

In re the Matter of M.M.D., a Minor (Christopher K. Johnson, Petitioner-Appellant,
v.
Christopher and Sue Duncan, Respondents-Appellees)

No. 3-03-0231.

Appellate Court of Illinois, Third District.

November 20, 2003.

Certificate of Importance Denied December 18, 2003.


Linda S. Groezinger, Kevin Lowe, Lowe & Groezinger, P.C., West Peoria, for Christopher K. Johnson.

John R. Pusey (argued), Vonachen, Lawless, Trager & Slevin, Peoria, for Christopher Duncan, Sue Duncan.

Justice HOLDRIDGE delivered the opinion of the court:

Christopher Johnson filed a petition in the Peoria County circuit court seeking termination (or alternatively, modification) of an order granting visitation rights to his child's maternal grandparents, Christopher and Sue Duncan. The judge denied his petition and also denied his subsequent motion to reconsider. Johnson filed this appeal claiming the judge erred because the circuit court lacked jurisdiction to enforce the grandparent visitation order. He asserts that the recent holding in

800 N.E.2d 832
Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002) (declaring the grandparent visitation statute unconstitutional), voided the visitation order as a matter of law. We affirm the circuit court's judgment

BACKGROUND

As early as the 1970s Illinois common law provided visitation rights to grandparents upon a showing of "special circumstances." See Chodzko v. Chodzko, 66 Ill.2d 28, 4 Ill.Dec. 313, 360 N.E.2d 60 (1976); see also Hawkins v. Hawkins, 102 Ill.App.3d 1037, 58 Ill.Dec. 620, 430 N.E.2d 652 (1981). The legislature subsequently enacted subsections 607(b)(1) and (3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/607(b)(1) and (3) (West 2000)), authorizing courts to order grandparent visitation upon a finding that such visitation "is in the best interests and welfare of the child." 750 ILCS 5/607(b)(1) (West 2000).

Johnson's wife died while giving birth to M.M.D. on September 30, 1996. M.M.D. subsequently resided in foster care with the Duncans until July 17, 2001. On that date, the circuit court entered an order (1) granting Johnson full and permanent custody of M.M.D., and (2) adopting a written agreement between Johnson and the Duncans regarding the Duncans' visitation rights. Under the visitation portion of the order, the Duncans received visitation rights every Wednesday evening and every other weekend. They were also authorized, inter alia, to "inspect [M.M.D.'s] school and medical records and to communicate with teachers, school personnel, counselors, and physicians to discuss [M.M.D.'s] standing and progress." Additionally, Johnson was required to "continuously advise" the Duncans of M.M.D.'s progress at school and inform them "as soon as possible" of any illness or injury she suffered.

In 2001 this court held that subsection 607(b)(1) of the Act was unconstitutional—as applied to a particular mother—because it interfered with the mother's fundamental right to make decisions about the care, custody, and control of her child. See Langman v. Langman, 325 Ill.App.3d 101, 258 Ill.Dec. 816, 757 N.E.2d 505 (2001).1 Despite the unconstitutionality of the statute, the child's grandparents argued that their visitation request should be upheld under the preexisting common law. This court disagreed, stating:

"Rita and Brent [the grandparents] have cited no authority for the proposition that grandparents whose child has died and who have been granted limited visitation rights to their grandchildren by the surviving parent may be awarded additional visitation rights as a `special circumstance.' * * * Therefore, we will not authorize this visitation order under common law." Langman, 325 Ill.App.3d at 107-08, 258 Ill.Dec. 816, 757 N.E.2d 505.

In 2002 the Illinois Supreme Court held that subsections 607(b)(1) and (3) of the Act are unconstitutional on their face. See Wickham, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1. The court explained that decisions made by fit parents are constitutionally presumed to serve the best interests of their children. Thus, subsections 607(b)(1) and (3) violate parents' due process rights by allowing circuit courts to

800 N.E.2d 833
displace parental decisions with judges' opinions about the best interests of children. According to the court, "[s]tate interference...

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9 practice notes
  • Santiago v. E.W. Bliss Co., No. 111792.
    • United States
    • Supreme Court of Illinois
    • August 9, 2012
    ...that is null and void ab initio and any new complaint filed outside of the limitations period would be time barred); In re M.M.D., 344 Ill.App.3d 345, 348, 279 Ill.Dec. 543, 800 N.E.2d 831 (2003) (the legal effect of enacting an unconstitutional statute is that it is void ab initio, as if i......
  • In re Marriage of Engelkens, No. 3-03-0842.
    • United States
    • United States Appellate Court of Illinois
    • December 28, 2004
    ...for visitation. Further, an unconstitutional statute is "void ab initio (as if it never existed from its inception)." In re M.M.D., 344 Ill.App.3d 345, 348, 279 Ill.Dec. 543, 800 N.E.2d 831, 833 (2003). Therefore, a court cannot find an "exception" to the unconstitutionality of a statute. W......
  • In re Marriage of Ross, No. 5-03-0613.
    • United States
    • United States Appellate Court of Illinois
    • February 16, 2005
    ...on resurrected common law principles. Beurksen, 351 Ill.App.3d at 150, 286 Ill.Dec. 325, 813 N.E.2d 1018 (relying on In re M.M.D., 344 Ill.App.3d 345, 349, 279 Ill.Dec. 543, 800 N.E.2d 831 (2003) (Slater, J., The statute authorizing the court to order grandparent visitation privileges, agai......
  • In re MMD, No. 97537.
    • United States
    • Supreme Court of Illinois
    • November 18, 2004
    ...appeal brought under Supreme Court Rule 308 (155 Ill.2d R. 308), the appellate court reached the same conclusion and affirmed. 344 Ill.App.3d 345, 279 Ill.Dec. 543, 800 N.E.2d 831. One justice dissented. We granted 820 N.E.2d 395 leave to appeal from the appellate court's judgment. 177 Ill.......
  • Request a trial to view additional results
9 cases
  • Santiago v. E.W. Bliss Co., No. 111792.
    • United States
    • Supreme Court of Illinois
    • August 9, 2012
    ...that is null and void ab initio and any new complaint filed outside of the limitations period would be time barred); In re M.M.D., 344 Ill.App.3d 345, 348, 279 Ill.Dec. 543, 800 N.E.2d 831 (2003) (the legal effect of enacting an unconstitutional statute is that it is void ab initio, as if i......
  • In re Marriage of Engelkens, No. 3-03-0842.
    • United States
    • United States Appellate Court of Illinois
    • December 28, 2004
    ...for visitation. Further, an unconstitutional statute is "void ab initio (as if it never existed from its inception)." In re M.M.D., 344 Ill.App.3d 345, 348, 279 Ill.Dec. 543, 800 N.E.2d 831, 833 (2003). Therefore, a court cannot find an "exception" to the unconstitutionality of a statute. W......
  • In re Marriage of Ross, No. 5-03-0613.
    • United States
    • United States Appellate Court of Illinois
    • February 16, 2005
    ...on resurrected common law principles. Beurksen, 351 Ill.App.3d at 150, 286 Ill.Dec. 325, 813 N.E.2d 1018 (relying on In re M.M.D., 344 Ill.App.3d 345, 349, 279 Ill.Dec. 543, 800 N.E.2d 831 (2003) (Slater, J., The statute authorizing the court to order grandparent visitation privileges, agai......
  • In re MMD, No. 97537.
    • United States
    • Supreme Court of Illinois
    • November 18, 2004
    ...appeal brought under Supreme Court Rule 308 (155 Ill.2d R. 308), the appellate court reached the same conclusion and affirmed. 344 Ill.App.3d 345, 279 Ill.Dec. 543, 800 N.E.2d 831. One justice dissented. We granted 820 N.E.2d 395 leave to appeal from the appellate court's judgment. 177 Ill.......
  • Request a trial to view additional results

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