Langman v. Langman

• Decision Date: 06 July 2001
• Docket Number: No. 3-00-0684.,3-00-0684.
• Citation: 325 Ill. App.3d 101,757 N.E.2d 505,258 Ill.Dec. 816
• Parties: Brent LANGMAN and Rita Langman, Petitioners-Appellees, v. Amy LANGMAN, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

757 N.E.2d 505

325 Ill. App.3d 101

258 Ill.Dec. 816

Brent LANGMAN and Rita Langman, Petitioners-Appellees, v. Amy LANGMAN, Respondent-Appellant.

No. 3-00-0684.

Appellate Court of Illinois, Third District.

July 6, 2001.

Richard W. Zuckerman (argued), Law Office of Richard W. Zuckerman, Peoria, for Amy Langman.

Adrienne W. Albrecht (argued), Sacks, Albrecht & Gubbins, Kankakee, for Brent Langman, Rita Langman.

Justice SLATER delivered the opinion of the court:

The respondent, Amy Langman, appeals from the judgment of the circuit court of Kankakee County granting the petitioners, Brent and Rita Langman, visitation rights to their grandchildren. On appeal, Amy argues: (1) section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) is unconstitutional as applied in this case (750 ILCS 5/607(b)(1) (West 1998)); (2) section 607(b)(1) of the Act is unconstitutional on its face (750 ILCS 5/607(b)(1) (West 1998)); and (3) the trial court's visitation schedule was against the manifest weight of the evidence. We hold that section 607(b)(1) of the Act is unconstitutional as applied in this case and reverse the trial court's judgment.

The record reflects that Amy and Rhett Langman were married and had two children, T.L., born September 3, 1995, and P.L., born June 25, 1998. Rhett died in an accident on September 20, 1998. After Rhett's death, Amy had disagreements with Rita and Brent, Rhett's parents, regarding the amount of time they would be allowed to spend with her children. Amy wanted only supervised visitation. Rita and Brent wanted unsupervised visitation.

On May 21, 1999, Rita and Brent filed a petition to set grandparent visitation. At the hearing on the petition, Elizabeth Langman testified that she was the children's great-grandmother and had resided with Brent and Rita for the last two years. According to Elizabeth, before Rhett's death, he would bring T.L. over to the house once a week for visits. She said that Rita and Brent had a loving relationship with T.L. She had observed T.L. shower with his grandfather on more than one occasion, but she did not find that to be improper.

Amy testified as an adverse witness. She said that she and the children had moved six hours away from Rita and Brent to Columbia, Missouri, for a fresh start. She said that when Rhett was alive, he used to take T.L. over to Rita and Brent's once a week. T.L. used to spend 10 hours a week at Rita, and Brent's home until Amy learned that Brent was showering naked with T.L.

Brent testified that before Rhett died, he would see his grandchildren about every two weeks. He had a good relationship with Rhett and they were in business together. He and Rita would vacation with Rhett, Amy, and the children at least once a year. After Rhett died, they would see the children on Tuesday nights while Amy bowled. He had not heard from the children or seen them since the previous Halloween. Brent said that he and Rita only wanted their own time with their grandchildren, but Brent admitted that he wanted Amy to bring the children to his home and leave them there without Amy being present.

Rita Langman testified that T.L. had just turned three and P.L. was three months old when her son died. Before Rhett died, she saw T.L. two to three times a month; she and Brent babysat for T.L. and P.L. She had a very close relationship with T.L. They used to all vacation together. After Rhett died, their relationship with Amy became strained. She asked Amy once if there was a problem, and Amy told her that she and Brent would not do what she asked them to do when they babysat. Amy asked her to telephone her ahead of time if she wanted to visit the children. Rita said she then began to call first, but that she seldom got a phone call back. She wanted to see her grandchildren more often.

On cross-examination, Rita said that Amy was doing a good job raising the children. She knew that Amy criticized her because of the "shower incident." Rita said that they had two bathtubs in their house, but T.L. wanted to shower, so Brent showered with him. This upset Amy.

Brent was recalled as a witness. He testified that he raised two children, Brent and Rhett. His son Brent visits the house once or twice a month. When he visits, he stays overnight with his friend, Ray Bonovini. Brent and Ray had been in the home when T.L. and P.L. visited, but they never stayed overnight on the same night. When questioned about showering with T.L., Brent admitted that he had showered with T.L. about six times. He said that Rhett let T.L. shower with him and that Amy never objected.

Amy testified on her own behalf that she had good reasons for not wanting the children to go to Rita and Brent's house unsupervised. She said that she told Rita that she did not want T.L. showering with Brent, but that it continued to happen. She was concerned that her brother-in-law was a homosexual. She said that Rita and Brent engage in "family feuds" with other family members and do not talk for months to those relatives. Amy did not want her children to be part of that environment.

Upon questioning by the court, Amy testified that she had moved to Missouri because she and her children needed a fresh start and a place they could be happy. She wanted any visitation to be supervised by her and at her home. She did not want overnight visits, but noted that Rita and Brent had family in St. Louis.

After hearing all the evidence, the trial court issued its order with an accompanying memorandum. In its memorandum, the court noted that all the parties were responsible, moral and caring people. The court acknowledged that Amy did not object to visitation, but had requested supervised visitation. The trial judge noted that it could not do more than balance the rights of the parent and grandparents. In reviewing the facts, the court said that it did not believe Amy's concerns were justified regarding Brent showering with T.L. or associating with his homosexual uncle. It then set up a visitation schedule which would eventually allow Rita and Brent unsupervised visitation for one full weekend each month.

On appeal, Amy first argues that section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) is unconstitutional as applied in this case. 750 ILCS 5/607(b)(1) (West 1998). The Act provides in part:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any minor child upon petition to the court by the grandparents or great-grandparents or on behalf of the sibling, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce such visitation privileges. Except as provided in paragraph (2) of this subsection (b), a petition for visitation privileges may be filed under this paragraph (1) whether or not a petition pursuant to this Act has been previously filed or is currently pending if one or more of the following circumstances exist:

(A) the parents are not currently cohabitating on a permanent or an indefinite basis;

(B) one of the parents has been absent from the marital abode for more than once 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 1998).

Parents have a fundamental constitutional right to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). By allowing the state to override the decisions of parents regarding the upbringing of their children, section 607(b)(1) of the Act significantly interferes with the fundamental rights of parents. Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000). Therefore, the constitutionality of section 607(b)(1) of the Act must be evaluated under a strict scrutiny analysis. Lulay, 193 Ill.2d at 476,250 Ill.Dec. 758,739 N.E.2d at 532. To withstand the strict scrutiny test, a statute must serve a compelling state interest, and the statute must be narrowly tailored to serve the compelling interest. Lulay, 193 Ill.2d at 476,250 Ill.Dec. 758,739 N.E.2d at 532. Both the United States Supreme Court and our supreme court have analyzed various of the following factors to determine whether a grandparent visitation statute is unconstitutional as applied to the facts of a particular case: (1) who may bring the action; (2) whether the grandparents alleged, or the trial court found, that the parent was unfit; (3) whether the grandparents alleged that the parent sought to terminate visitation entirely; and (4) whether the trial court gave any special weight to the parent's determination of the children's best interests. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000).

We initially note that Brent and Rita argue that Amy has waived the issue of the constitutionality of section 607(b)(1) of the Act because she did not raise it before the trial court. 750 ILCS 5/606 (b)(1) (West 1998). However, waiver is a limitation on the parties and not on the courts. A reviewing court may ignore the waiver rule in order to achieve a just result. In re Janet S., 305 Ill.App.3d 318, 238 Ill.Dec. 700, 712 N.E.2d 422 (1999). Although Amy did not raise the constitutionality of the statute below, the trial court did raise it and ruled on it. Therefore, in the interest of justice, we will review this issue.

Section 607(b)(1) is more narrow than the statute in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In that case, the United States Supreme Court reviewed a Washington statute which permitted any party to petition ...