Wickham v. Byrne

• Decision Date: 18 April 2002
• Docket Number: No. 92048, No. 92135.
• Citation: 769 N.E.2d 1,199 Ill.2d 309,263 Ill.Dec. 799
• Parties: Virginia WICKHAM, Appellee, v. Paul Michael BYRNE, Appellant. Brent Langman et al., Appellants, v. Amy Langman, Appellee.
• Court: Illinois Supreme Court

769 N.E.2d 1

199 Ill.2d 309

263 Ill.Dec. 799

Virginia WICKHAM, Appellee, v. Paul Michael BYRNE, Appellant. Brent Langman et al., Appellants, v. Amy Langman, Appellee.

Nos. 92048, 92135.

Supreme Court of Illinois.

April 18, 2002.

Michael Kevin Goldberg, Robert A. Bauerschmidt, Gerald G. Goldberg, of Goldberg & Frankenstein, L.L.C., Chicago, for appellant in No. 92048.

No appearance for appellee in No. 92048.

Adrienne W. Albrecht, of Sacks, Albrecht & Gubbins, Kankakee, for appellants in No. 92135.

Richard W. Zuckerman, Peoria, for appellee in No. 92135.

Patricia M. Logue, Chicago, for amicus curiae Lambda Legal Defense and Education Fund, Inc. in No. 92135.

Justice FITZGERALD delivered the opinion of the court:

At issue in these consolidated cases is whether certain provisions of section 607 of the Illinois Marriage and Dissolution of Marriage Act (Act), commonly called the grandparent visitation statute, violate a parent's due process rights. See 750 ILCS 5/607(b)(1), (b)(3) (West 2000).

BACKGROUND

The Wickham Petition

Paul Michael Byrne (Paul) and Lizabeth Wickham Byrne (Lizabeth) were married and had one child, J.B., born November 7, 1997. Lizabeth died September 14, 1998. In her last will and testament, Lizabeth expressed a wish for frequent visitation between J.B. and her mother, Virginia Wickham (Virginia). After Lizabeth's death, Paul agreed to maintain the relationship between Virginia and J.B., often driving J.B. 50 minutes to Virginia's home. Virginia, however, requested more time with J.B. and asked Paul to allow unsupervised overnight visits. Paul offered to drive J.B. for visits when his schedule permitted, but refused to leave J.B. with Virginia unsupervised and overnight. Unable to resolve the conflict, Virginia filed a petition in the circuit court of Cook County for grandparent visitation under section 607(b)(1) of the Act. In her petition, Virginia requested mandatory overnight visitation with J.B. two full weekends a month.

Initially, Paul moved to dismiss the petition based upon decisions of the United States Supreme Court and this court. See Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion); Lulay v. Lulay, 193 Ill.2d 455, 250 Ill.Dec. 758, 739 N.E.2d 521 (2000). Paul argued that section 607(b)(1) of the Act violated the due process clauses of the Illinois and United States Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §§ 1, 2. The trial court denied the motion.

At the hearing on Virginia's petition, the court heard testimony from Paul, Virginia, and J.B.'s pediatrician. Prior to ruling, the court stated that "[t]he 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." However, the court held that Virginia's attempts to undermine the relationship between Paul and J.B. by filing frivolous and unfounded complaints with the Department of Children and Family Services and interfering with J.B.'s pediatric care without Paul's consent warranted limited visitation. Thus, the court denied overnight visitation, but ordered supervised visitation with J.B. at Paul's home four hours a week. The trial court appointed a child representative and set the case for status in 60 days.

Following the trial court order, Paul filed an "Amended Motion to Dismiss Complaint" and renewed his argument based upon Troxel and Lulay. The trial court again denied the motion, finding that:

"[T]he state may have a compelling interest in ordering visitation between J.B. and Ms. Wickham over Mr. Byrne's objection.

* * *

Mr. Byrne has not shown that the asserted state interest in requiring him to permit Ms. Wickham to visit with J.B. is either illusory or not compelling. Under these circumstances, this court holds that, as applied to the facts of this case as developed thus far, Section 607(b)(1) does not violate Mr. Byrne's constitutional parental rights."

Paul filed an application for an interlocutory appeal under Illinois Supreme Court Rule 308. See 155 Ill.2d R. 308. The appellate court denied Paul's application. We granted Paul's petition for leave to appeal. See 177 Ill.2d R. 315(a).

The Langman Petition

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 on September 20, 1998. Prior to Rhett's death, his parents, Rita and Brent Langman (Rita and Brent), maintained a close relationship with their grandchildren, seeing the children two to three times a month. Immediately after Rhett's death, Rita and Brent continued this relationship by baby-sitting the children each Tuesday night so that Amy could attend social activities. Rita and Brent asked Amy for more time with the children, including overnight visits. Amy rejected the idea and told Rita and Brent that she was unhappy with their refusal to follow her directions when they baby-sat the children. Amy also explained to Rita and Brent that she was uncomfortable with their home environment and the children's exposure to their uncle's lifestyle. Amy agreed to visitation, but she demanded Rita and Brent visit the children at her home, while she was present.

Unable to resolve their differences, Rita and Brent filed a petition in the circuit court of Kankakee County for grandparent visitation under section 607(b)(1). The petition stated, in part: "That it is in the minor children's best interest that the Petitioners [Rita and Brent] be allowed specific visitation with them outside of the presence of the Respondent [Amy] in order to further and foster the close family relationship that they previously shared and in order that they grow up sharing the love and concern of their father's family as well as that of their mother." After Rita and Brent filed their petition for visitation, Amy moved to Missouri, six hours away from Rita and Brent, with the children to make a fresh start, telling Rita and Brent, "I don't come back for my own family and I don't come back for my friends."

On March 17, 1999, at the hearing on the petition for visitation, 17 witnesses testified. Additionally, the parties submitted written closing arguments to the court, which included suggested visitation schedules. On August 2, 2000, the trial court issued its order with an accompanying memorandum. In its memorandum, the trial court stated:

"[T]estimony revealed the mother is a loving caring mother who wishes to protect her children from exposure to things she feels are in appropriate [sic.]

* * *

All of the parties are responsible, moral and caring people. The children's mother does not object to visitation but only on her terms, which appear to be supervised visits in her presence.

This is a particularly difficult case because all of the parties believe they are doing what is in the best interest of the children. The Court can not do more than balance the right of the parent and grandparents. The State of Illinois has sought to protect relationships children have with their grandparents yet it also must protect the rights of a parent to whose preliminary right and responsibility it is to care for and nurture their children.

The real test, in the best interest of the children, is the test that must be applied here. It has been the law of Illinois for over 30 years that when considering the best interest of the children the Court must look at `all matters that have a bearing upon the welfare of the child.'"

The trial court continued: "[T]here is a strong indication that unsupervised grandparental visitation would be of great benefit to the children. Their father is deceased, his surviving family is the only connection the children can have with those who had an intimate and close family relationship." The trial court ordered visitation, beginning gradually with afternoon visits, and eventually leading to unsupervised visits one full weekend each month. The trial court ordered that Amy split the costs of transportation with Rita and Brent. Further, the trial court ordered telephone contact one day a week for up to 15 minutes. Amy appealed.

The appellate court reversed the trial court order. 325 Ill.App.3d 101, 108, 258 Ill.Dec. 816, 757 N.E.2d 505. Citing to Troxel and Lulay, the appellate court held that section 607(b)(1) of the Act, as applied in this case, unconstitutionally infringed on Amy's fundamental right to make decisions concerning the care, custody, and control of her children. 325 Ill.App.3d at 107, 258 Ill.Dec. 816, 757 N.E.2d 505. The appellate court declined to consider whether section 607(b)(1) is facially unconstitutional. 325 Ill.App.3d at 107, 258 Ill.Dec. 816, 757 N.E.2d 505.

We granted Rita and Brent's petition for leave to appeal and consolidated these cases.

ANALYSIS

Less than two years after our decision in Lulay, we are asked again to consider the constitutionality of the Act. In Lulay, we held that section 607(b)(1), as applied to the parents' joint decision to deny grandparent visitation, unconstitutionally infringed on their "well-established fundamental liberty interest in making decisions regarding the upbringing of their children." Lulay, 193 Ill.2d at 479, 250 Ill. Dec. 758, 739 N.E.2d 521. In the instant matter, we address the constitutionality of sections 607(b)(1) and (b)(3) in the context of a single parent's decision concerning visitation with a deceased spouse's parents.

Citing to Troxel and Lulay, Paul and Amy argue that sections 607(b)(1) and (b)(3) as applied to a single parent's decision regarding grandparent visitation violate a parent's fundamental constitutional right to make decisions concerning the care, custody, and control of his or her children. Additionally, Paul argues that sections 607(b)(1) and (b)(3) are facially unconstitutional.

Section 607(b) states, in pertinent part:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent,

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