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On October 26, 2000, the Illinois Supreme Court held that under certain and specific circumstances, the section of the Illinois Marriage and Dissolution Act pertaining to the visitation rights of grandparents is unconstitutional. Lulay v. Lulay, Nos. 87874, 87896, 2000 WL 1608769 (Ill. Oct. 26, 2000). This decision goes against the trend of case law that was developing in Illinois that seemed to favor the visitation rights of grandparents. Before exploring Lulay v. Lulay, this article details the corresponding section of the Illinois Marriage and Dissolution of Marriage Act regarding grandparents’ visitation rights. Second, a recent United States Supreme Court decision regarding a similar statute from the State of Washington is discussed. Third, the facts, opinion and decision of Lulay v. Lulay is given. Finally, the article concludes that although the Illinois Supreme Court issued a narrow holding applying to only specific circumstances, the decision in Lulay v. Lulay will eventually destroy the headway gained by grandparents in their quest to obtain stronger rights of visitation with their grandchildren.
Illinois Marriage and Dissolution of Marriage Act 750 ILCS 5/607
The statute states that a court may grant reasonable visitation privileges to grandparents (great-grandparents or a sibling) of any minor child upon petition to the court by the grandparents with notice to the parties, and if the court determines that it is in the best interest and welfare of the child, an order may be granted to enforce such visitation privileges. 750 ILCS 5/607(b)(1) (West 2000). These visitation privileges are only granted when the parents are not currently cohabiting, one of the parents has been absent from the marital abode for more than one month, one of the parents is deceased, one of the parents joins in a petition with the grandparents, or a sibling is in State custody. 750 ILCS 5/607(b)(1)(A), (B), (C), (D), and (E) (West 2000).
This statute has been applied in many cases involving the visitation rights of grandparents in Illinois. The State Legislature recognized that due to the changing face of the American family unit, grandparents needed protections afforded to them so they could sustain meaningful relationships with their grandchildren when certain unfortunate circumstances arose that threatened those relationships. In fact, up until recently, the case law in Illinois seemed to favor the visitation rights of grandparents coupled with the specific circumstances listed in the statute. See e.g., West v. West 294 Ill.App.3d 356, 689 N.E.2d 1215 (5 Dist. 1998), In re Marriage of Lindsey, 158 Ill.App.3d 769, 511 N.E.2d 198 (4 Dist. 1987), Boyles v. Boyles, 14 Ill.App.3d 602, 302 N.E.2d 199 (3 Dist 1973). However, influenced greatly by a United States Supreme Court decision, this trend has now changed in Illinois.
U. S. Supreme Court Decision of Troxel v. Granville
The United States Supreme Court on June 5, 2000, held that a Washington state statute regarding the visitation rights of grandparents was unconstitutional. Troxel v. Granville, 120 S.Ct. 2054 (2000). That Washington statute provided that “any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child . . .” Id. at 2057. In Troxel, the parents, who were never married, had two children. The father regularly brought the children to visit with their grandparents. The father committed suicide, and the mother tried to limit the children from visiting with their paternal grandparents. Id.
Justice O’Connor delivered the plurality opinion of the court and found that although the grandparents had standing to bring the suit under the statute in its current form, the statute itself was unconstitutional based on a substantive due process analysis. The Court first determined that the right of parenting was a fundamental right deeply rooted in American case law and history. Id. at 2060. The Court then determined that the Washington statute was an unconstitutional infringement on the fundamental right of parents to raise their children as they see fit. Specifically, the Court found that the statute was “breathtakingly broad” by allowing any person at any time to petition for visitation whenever “visitation may serve the best interest of the child.” Id. at 2061. Justice O’Connor even went as far as to say that “there is a presumption that fit parents act in the best interests of their children,” and that the Washington statute inappropriately and unconstitutionally stated a parent’s decision on visitation should not be accorded deference. Id. Thus, the Court determined that the State’s objective to protect a third party’s visitation rights was not compelling or necessary when weighed against the infringement the statute placed upon the fundamental right of parenting by a fit parent.
Illinois Supreme Court Decision In Lulay v. Lulay
In the wake of Troxel, the Illinois Supreme Court was forced to consider the constitutionality of its State’s statute regarding the visitation rights of grandparents in Lulay v. Lulay, Nos. 87874, 87896, 2000 WL 1608769 (Ill. Oct. 26, 2000), which originated in the circuit court of Du Page County. In this case, Michael Lulay and Kiley Lulay were divorced on March 11, 1996 and they retained joint custody over their three minor children. Gail Lulay, Michael’s mother, sought visitation rights to see her grandchildren pursuant to section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act. Both Michael and Kiley filed a motion to dismiss the petition for visitation brought by Gail. Id at *1. The court found that under the statute, Gail, as a grandparent had a right to seek visitation by filing a petition so long as the parents of her grandchildren were not currently cohabiting on a permanent basis, regardless of the fact that Gail’s own child, Michael, objected to visitation by Gail. Id. at *6. The court clearly stated that “the statute makes no exception for a situation where a parent who opposes the visitation is the child of the petitioning grandparent.” Id.
However, adopting the same reasoning and substantive due process analysis used by the United State Supreme Court in Troxel, the Illinois Supreme Court determined under these facts that the statute was unconstitutional. The court here claims that “to hold that section 607(b)(1) is not a significant interference with the fundamental right of parents to raise their children would be to effectively obliterate that fundamental right.” Id. at *10. The State’s compelling interest to preserve the grandparent-grandchild relationship coupled with the means provided by the statute does not outweigh the burden placed on the fundamental right of parenting when two fit parents united in their belief are (1) joined in a lawsuit, (2) required to hire attorneys to defend themselves, and then (3) compelled to present evidence and defend their decisions regarding the visitation before the trial court. Id. at *11. “The parents’ authority over their children is necessarily diminished by this procedure.” Id. The court stated that unless the parents are alleged to be unfit, the State cannot be allowed to use its power to impose its judgment that visitation may be better for the grandchildren over the joint decision of two fit parents who have determined that visitation should not occur. To do so would be an unconstitutional infringement on the parents’ fundamental right regarding the upbringing of their children. Id. at *14.
The majority opinion in Lulay claimed that because of its holding that section 607(b)(1) was unconstitutional as applied to the particular facts of the case, the court did not need to address the respondent parents’ argument that the section was facially unconstitutional. Id. Therefore, as one of the concurring opinions correctly points out, “this leaves open the possibility that other grandparents, under a slightly different set of facts, might successfully petition for grandparent visitation under section 607.” Id. at *15. However, even though the Illinois Supreme Court takes no stance on whether the statute is facially unconstitutional, it would be difficult to argue that the trend of case law will be to turn away from the stronger grandparents rights that were taking shape during the past 30 years in the State of Illinois, especially in light of the heavy authority handed down by the U.S. Supreme Court in Troxel coupled with the recent opinion of Lulay.
Matthew Jannusch is Assistant Editor for the NIU Law Review.