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Posted on Thursday, May 8^th 2008

Family Law
Flynn v Henkel: A Heavy Burden for Petitioners Under the Grandparent Visitation Act

By Michael K. Goldberg


In 2007 the illinois supreme Court accepted two grandparent visitation cases only to decide them on purely procedural grounds, having nothing to do with the substance of the new illinois Grandparent Visitation act ("act").1 Those two decisions, Mulay v Mulay2 and Felzak v Hruby,3 had illinois family law practitioners wondering if the court would ever offer insight into the act.

However, in late 2007, the Illinois Supreme Court weighed in on grandparent visitation in Flynn v Henkel.4 By applying and interpreting the Act to reverse the lower court's award of visitation, the Flynn court offers the much-needed insight into the untested Act.

Flynn makes clear for now that Illinois grandparents have the right to seek court-enforced visitation with their grandchildren, but it also emphasizes the heavy burden placed on grandparents when trying to do so. It did not rule on the constitutionality of the Act. This article will briefly examine the Illinois Grandparent Visitation Act and then discuss Flynn as it pertains to the Act.

Wickham and Troxel

Any discussion of grandparent visitation in Illinois must begin with the 2002 Illinois Supreme

Court decision in Wickham v Byrne5 that invalidated the former Illinois Grandparent Visitation Act. (750 ILCS 5/607 (b)
(1) and (3)), declaring it facially unconstitutional.6 The Wickham court reasoned that the old Act was fatally flawed because it did not contain a presumption in favor of a fit parent's decision regarding grandparent visitation and because it directed courts to implement the "best interest of the child" standard when determining visitation disputes between parents and grandparents, as opposed to the more restrictive "health, safety and welfare" test.7

According to Wickham, in visitation disputes between a grandparent and a parent, a court may not interfere with a parent's fundamental right to the care, custody and control of his or her child unless the child's health, safety, or welfare will be adversely affected by a refusal of visitation.8 In other words, the grandparent must prove that the parent's decision to refuse visitation will cause physical, mental, or emotional harm to the child.

The Wickham court ruled that the best interest standard was insufficient when determining visitation disputes between a parent and grandparent, since those disputes are less critical than visitation disputes between parents.9 The Wickham court was influenced by Troxel v Granville10 a 2000 United States Supreme Court case holding that Washington State's third-party visitation statute was unconstitutional as applied. The Troxel 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.11

The Grandparent Visitation act

After the Wickham court declared the Grandparent Visitation Act unconstitutional, the following changes were made to the Act.

Denial of visitation must be unreasonable. The new Act requires a grandparent, great-grandparent or sibling of a child to show an unreasonable denial of visitation by a parent to have standing to petition for court-imposed visitation.12 This requirement was added based on language contained in Troxel. The Troxel Court found it significant that the surviving parent never sought to cut off visitation entirely.

In its decision, the Court took note that 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.13 The following statutes were listed by the Court: 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"); RI 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").14 Now, the new Act contains similar language.

In divorce, one parent must approve visitation. The second significant change in the Act is based on the Illinois Supreme Court's holding in Lulay v Lulay.15 The Lulay court held state-mandated grandparent visitation unconstitutional as applied to the children of divorced parents, where both parents object to visitation, seeing it as an infringement on the parents' fundamental liberty interest in raising their children.

Therefore the new act contains language that in cases of divorce, before visitation can be granted, the person petitioning for visitation must be able to allege that "at least one parent does not object to the grandparent, great-grandparent, or sibling having visitation with the child."16 Effective January 1, 2007, the Act states that grandparents have standing to file a petition for visitation rights in a "pending dissolution proceeding or any other proceeding that involves custody or visitation issues."17

Children subject to juvenile court jurisdiction excluded. A third change only applies to children subject to the jurisdiction of a juvenile court, and it specifically excludes those children from the Act, if the custodial rights of one of the parents has been terminated.

This language was added during the Senate debate at the behest of the Illinois Department of Children and Family Services, whose lobbyist testified that family members of parents whose rights have been terminated are often part of the problem that required those rights to be terminated, and that every effort is made at the beginning of a termination process to place the children with family members if at all possible.

Burden of persuasion on grandparent, not parent. The fourth change will have the greatest impact on those petitioning for rights under the new Act and goes to the essence of the Wickham holding. The new Act changes the presumption regarding visitation from the old Act, which was in favor of the third-party seeking visitation18 to one that favors the parent's decision.

Furthermore, while the former Act directed courts to grant visitation if it determined that the visitation would be in the best interests and welfare of the child,"19 the new Act states that, "the burden is on the party filing a petition under this Section to prove that the parent's actions and decisions regarding visitation times are harmful to the child's mental, physical, or emotional health."20

Effective January 1, 2007, the Grandparent Visitation Act does not apply to a child less than one year old. As for venue, a petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides.

Factors to consider in granting visitation. A fifth change includes a non-exhaustive list of factors for a trial court to consider when determining whether to grant grandparent visitation.21 Those factors include

the preference of the child, if the child is old enough to state a preference,
the mental and physical health of the child,
the mental and physical health of the person seeking visitation,
the length and quality of the prior relationship between the child and the person seeking visitation,
the good faith of the parent and/or the party seeking visitation,
the good faith of the person denying visitation,
the quantity of visitation requested and the potential adverse impact on the family,
whether the child resided with the petitioner for at least 6 consecutive months,
whether the petitioner had frequent visitation with the child for at least 12 months,
any other factor that establishes that the loss of the relationship between the petitioner and the child is likely to harm the child's mental, physical, or emotional health, and
whether the grandparent, great-grandparent, or sibling was a primary caretaker of the child for a period of not less than six consecutive months.
Overnights, modifications. A sixth change specifically states that reasonable visitation does not require overnight visits,22 and a seventh change alters the requirements for modifying a visitation order, making it more difficult to do so.23

Attorney fee provision. Finally, the new Act adds an attorney's fees provision, assessing such fees and costs against a party seeking to modify a visitation order if the court finds that the modification action is vexatious and constitutes harassment.24 This language was not in the initial drafts of the new Act, but was specifically requested by members of the House Judiciary Committee.

Effective January 1, 2007, if a child is adopted by a relative or a step-parent, grandparents still have standing to petition for visitation after the adoption. The statute reads as follows:

Any visitation rights granted pursuant to this Section before the filing of a petition for adoption of a child shall automatically terminate by operation of law upon the entry of an order terminating parental rights or granting the adoption of the child, whichever is earlier. If the person or persons who adopted the child are related to the child as defined by Section 1 of the Adoption Act, any person who was related to the child as grandparent, great-grandparent, or
sibling prior to the adoption shall have standing to
bring an action pursuant
to this Section requesting visitation with the child.25

During the legislative process this language alarmed some adoption advocates, who fear any perception of weakening of the rights of adoptive parents.

Flynn v Henkel

Facts and lower-court
rulings. The mother (Alice Henkel) and father (Cory Flynn) were never married and never lived together. Their child (E.H.) was born on May 27, 2003, and thereafter, Alice lived with E.H. at the maternal grandmother's home. Cory was either in prison or soon to be released when E.H was born. (The record is not clear on this point.)

After the child was born, the paternal grandmother (Cindy Flynn) and her husband visited the child about once a week and, after a few weeks, arranged to visit twice a month for two hours. When Cory was released from prison, Alice would not allow him to see the child. Alice told Cindy that she and her husband could see the child if they kept Cory out of the child's life. Cindy and her husband agreed to this condition.

Cory later filed a petition to obtain visitation with his son, and Alice blamed Cindy for his doing so. Cory was granted supervised visitation at a community-based behavioral healthcare center. Eventually, Cory and Alice agreed to have the supervised visits at Alice's house. Cindy attended the visitations at the health center, but she did not attend the visitations at Alice's house.26

Cory left for California in September of 2005. Cindy contacted Alice and requested visitation with E.H. without Cory. Alice refused this request and Cindy, not having seen E.H since May of 2005, filed her petition for visitation in December 2005.

After the petition for visitation was filed, Alice and Cindy agreed to a trial visitation period that lasted for two visits each in January and in February of 2006. When no further agreement could be reached, a visitation hearing was held on April 21, 2006.

The only witnesses to testify at the hearing were Cindy, Alice, and Alice's mother. No motion attacking the sufficiency of the allegations in the petition and no answer to the petition was ever filed by Alice.27 At the close of the evidence and arguments, the trial court granted three hours of unsupervised visitation on the second Saturday of each month, stating as follows:

Based on the testimony presented the Court finds that the petitioner has met her burden. The harm in this case is not something that you can put in the sense of a direct emotional harm. It's a direct denial of an opportunity that every grandparent according to this statute is entitled to.28

Alice appealed, and the appellate court affirmed.

Illinois Supreme Court. The Illinois Supreme Court reversed the judgments of the Flynn appellate and trial courts.

The supreme court began its legal analysis in Flynn by discussing Wickham, highlighting its pro-parent language and making clear that the "best interest" standard is no longer constitutionally appropriate when deciding grandparent visitation cases. The court also emphasized the presumption that a fit parent's decision to deny or limit visitation is correct. The court then reversed both the trial court and appellate court:

Neither denial of an opportunity for grandparent visitation, as the trial court found, nor a child "never knowing a grandparent who loved him and who did not undermine the child's relationship with his mother," as the appellate court held, is "harm" that will rebut the presumption stated in section 607(a-5)(3) that a fit parent's denial of a grandparent's visitation is not harmful to the child's mental, physical, or emotional health.29

In other words, the court stated that missing the opportunity to bond with a grandparent, or being cut off from one parent's side of the family, is not harmful enough to a child by itself to warrant court-ordered visitation over the objection of a parent's decision to deny visitation. The court will uphold a fit parent's decision to deny visitation even if it can be shown that the grandparent seeking visitation will not undermine the child's parent.

Conclusion

As stated in Wickham and the Act, a grandparent seeking court-ordered visitation must prove that the child's mental, emotional, or physical health will be harmed if visitation is denied. Arguing that a child will be cut off from one side of the family if visitation is stopped is not enough to prove harm to the child.

To satisfy the pro-parent language in Wickham and the Act, a grandparent must produce evidence which demonstrates to a judge that a strong emotional bond has developed between the grandparent and the child and that the health, safety and welfare of the child will be adversely affected if visitation is entirely cut off.

While reaffirming the pro-parent holding in Wickham, the Flynn decision offers its tacit approval of the Act. Unless and until the court addresses the constitutionality of the Act head on, Flynn offers practitioners the best insight into the Illinois Supreme Court's opinion of grandparent visitation.

Michael K. Goldberg is a partner at the Chicago firm of Goldberg Law Group. He represented the parent in the Wickham case and drafted the original Grandparent Visitation Act and the 2007 amendments. He was assisted in this article by his associate Nicholas P. Hoeft and by a law student, Weston Eidson.
1. 750 ILCS 5/607 (a-5) (1) (eff 1/1/05).
2. 225 Ill 2d 601, 870 NE2d 328 (2007).
3. 226 Ill 2d 382, 876 NE2d 650 (2007).
4. 227 Ill 2d 176, 880 NE2d 166 (2007).
5. 199 Ill 2d 309, 769 NE2d 1 (2002).
6. Id at 320-21, 769 NE2d at 8.
7. Id at 314, 769 NE2d at 4.
8. Id at 317, 769 NE2d at 6.
9. Id at 320, 769 NE2d at 7.
10. 530 US 57 (2000).
11. Id at 68.
12. 750 ILCS 5/607 (a-5)(1).
13. Troxel, 530 US at 71.
14. Id at 71-72.
15. 193 Ill 2d 455, 739 NE2d 521 (2000).
16. 750 ILCS 5/607 (a-5)(1)(B).
17. 750 ILCS 5/607 (a-3).
18. 750 ILCS 5/607 (b) (3) of the pre-Wickham Act.
19. 750 ILCS 5/607 (b) (1) and (3) of the pre-Wickham Act.
20. 750 ILCS 5/607 (a-5) (3).
21. 750 ILCS 5/607 (a-5) (4).
22. 750 ILCS 5/607 (a-5) (5).
23. 750 ILCS 5/607 (a-7) (1) and (2).
24. 750 ILCS 5/607 (a-7)(3).
25. 750 ILCS 5/607 (a-5)(2). "Related child" means a child subject to adoption where either or both of the adopting parents stands in any of the following relationships to the child by blood or marriage: parent, grandparent, brother, sister, step-parent, step-grandparent, step-brother, step-sister, uncle, aunt, great-uncle, great-aunt, or cousin of first degree. A child whose parent has executed a final irrevocsable consent to adoption or a final irrevocable surrender for purposes of adoption, or whose parent has had his or her parental rights terminated, is not a related child to that person, unless the consent is determined to be void or is void pursuant to subsection O of Section 10. 750 ILCS 50/1 (B).
26. Flynn, 880 NE2d at 167-68.
27. Id at 168.
28. Id, quoting decision of trial court.
29. Id at 171.