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Posted on Thursday, September 21^st 2006

Goldberg & Frankenstein recently won a case before the Illinois Supreme Court, Wickham v. Byrne ( Opinion filed April 18, 2002), in which they convinced the Illinois Supreme Court to hold that sections 607(b)(1) and 607(b)(3) of the Illinois Grandparent Visitation Act are facially unconstitutional. Michael Goldberg and Gerald Goldberg briefed and argued the case before the Court on behalf of their client, Paul Byrne, a widowed parent, who took issue with his ex-mother-in-law's efforts to have overnight visitation with his infant daughter. The firm continues to represent clients in all family law matters, and specializes in visitation and custody disputes.

The facts:

Paul and Elizabeth 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.

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. Following the trial court order, Paul filed an Amended Motion to Dismiss Complaint. The trial court again denied the Motion, and the Appellate Court refused to hear the case. The Illinois Supreme Court subsequently agreed to take the case

Legal analysis:

Paul argued that sections 607(b)(1) and (b)(3) were facially unconstitutional. Section 607(b) states, in pertinent 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) *** 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.

(3) When one parent is deceased, the surviving parent shall not interfere with the visitation rights of the grandparents." 750 ILCS 5/607(b) (West 2000).

The Illinois Supreme Court reasoned that state interference in child rearing decisions should only occur when the health, safety, or welfare of a child is at risk. Additionally the Court would not limit the fundamental right to make decisions concerning the care, custody, and control of children to decisions made by joint parents: To the contrary, the United States Supreme Court recently recognized the changing demographics of the average American family, including the increasing number of single-parent households. Troxel , 530 U.S. at 64, 147 L. Ed. 2d at 55, 120 S. Ct. at 2059. The Illinois Supreme Court, therefore, rejected any argument that single parents are entitled to less constitutional liberty in decisions concerning the care, custody, and control of their children.

"In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decisions of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination. " Troxel , 530 U.S. at 70, 147 L. Ed. 2d at 59, 120 S. Ct. at 2062.

The Court stated that Section 607(b)(1) exposes the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micro-managing of the state.

The court was careful to point out that it does not disregard the value of a meaningful relationship between a grandparent and grandchild, and went on to state that in most cases, the relationship between a child and his or her grandparents is a nurturing, loving relationship that provides a vital connection to the family's history and roots. However, as with all human relationships, conflicts may arise between a child's parents and grandparents. In many cases, this conflict will concern disagreements about how a parent is raising his or her children. Yet, this human conflict has no place in the courtroom. This is true even where the intrusion is made in good conscience, such as the request for visitation to preserve the child's only connection to a deceased parent's family. Parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presumption that parents act in their children's best interest prevents the court from second guessing parents' visitation decisions. Moreover, a fit parent's constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents-not judges-should be the ones to decide with whom their children will and will not associate.

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