Subject: [ZIF] COURT CASE REFERRING TO MARRIAGE LICENSE
From: "Scott" <[email-masked]>
To: [email-masked]
Date: Thu, 24 Jul 2003 13:57:18 -0000

NO. 5-97-0108 
IN THE 
APPELLATE COURT OF ILLINOIS 
FIFTH DISTRICT 

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CAROLYN A. WEST and JOHN W. WEST,Petitioners and Cross-Appellees, 
v. 
GINGER WEST, Respondent and Cross-Appellant. 
Appeal from the Circuit Court of Jefferson County. 
No. 93-F-92 
Honorable Terry H. Gamber, Judge, presiding. 
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JUSTICE MAAG delivered the opinion of the court: 
This action was brought in April of 1993 by Carolyn and John West 
(grandparents) to obtain visitation rights with their grrandson, 
Jacob Dean West. Jacob was born January 27, 1992. He is the 
biological son of Ginger West and Gregory West, Carolyn and John's 
deceased son. In June of 1993, when Jacob was approximately 17 
months old, the grandparents were granted accelerating visitation 
privileges. The visitation began with brief visits every Saturday 
for six consecutive weeks in the presence of Ginger and culminated 
with alternating weekends, two weeks every summer, and December 26 
and 27 yearly. 
 In June of 1995, Ginger filed a petition to modify the order of 
visitation, which was denied. In February of 1996, after various 
petitions were filed requesting Ginger to show cause why she should 
not be held in contempt for not complying with the June 1993 order 
of visitation, Ginger filed a petition to terminate the 
grandparental visitation privileges of Carolyn and John. On May 15, 
1996, Ginger filed a notice of claim of unconstitutionality of the 
grandparental visitation statute (750 ILCS 5/607(b) (West 1996)). 
The trial court denied Ginger's motion to declare the statute 
unconstitutional. A notice of appeal was filed on this issue in 
December of 1996. 

 The relevant facts are as follows. Carolyn and John West are the 
paternal grandparents of Jacob West. Jacob is the biological son of 
Gregory and Ginger West. Gregory West, son of Carolyn and John, 
committed suicide in January of 1993. 

 In June of 1993, the circuit court of Jefferson County entered an 
order establishing visitation privileges for Carolyn and John with 
Jacob. The trial court made a finding that it was in the best 
interest of the child that such visitation should occur, but the 
court did not disclose the basis of its finding. 

 In July of 1995, Ginger filed a petition to modify the June 1993 
order of visitation. In August of 1995, Ginger unilaterally 
terminated the scheduled visitations. After Ginger refused to comply 
with the 1993 visitation order, Carolyn and John filed a series of 
petitions seeking a rule to show cause why Ginger should not be held 
in contempt of court for her noncompliance. In February of 1996, 
Ginger filed a petition to terminate Carolyn's and John's visitation 
privileges. In May of 1996, Ginger filed a motion to declare the 
grandparental visitation statute unconstitutional. In June of 1996, 
a hearing was held on the various issues in this case. 

 At this hearing, there was testimony that soon after Jacob began 
visiting with John and Carolyn, he began exhibiting changes in his 
behavior, all of which coincided with the visits. He began to speak 
with a speech impediment caused by a disfigurement of his face, 
which involved him twisting his mouth downwards and to the right. He 
regressed in his toilet training. He experienced periods of 
hysterical crying and nightmares. He became fearful of his mother 
and exhibited instances of self-abuse, when he would hit or bite 
himself when he thought he had done something wrong. 

 In August of 1995, Ginger took Jacob for a psychiatric evaluation. 
During this evaluation, Ginger found out that Jacob had been told 
how his father died. She had not told him the details of his 
father's death because she felt he was too young to cope with them. 
Carolyn and John deny telling him the details. Jacob told his 
maternal grandmother that Carolyn and John told him Ginger did not 
love him. Carolyn and John also deny telling him this. 

 The doctors concluded that Jacob suffered from traumatic stress 
disorder that is related to some aspect of visitation with Carolyn 
and John. The doctors could not determine with certainty whether the 
disorder was caused by something that transpired during visitation 
or whether it was caused by the active conflict between his mother 
and grandparents. One doctor opined that the disorder was caused by 
the visitation schedule that was set up with his paternal 
grandparents when he was less than two years old, which caused him 
to be separated from his mother. 

 Based upon findings by the doctors and the changed behavior 
patterns of Jacob, the Illinois Department of Children and Family 
Services (DCFS) conducted an investigation. DCFS determined that 
there was a risk of harm to the child from future contact with John. 
This was based on statements made by Jacob that he and his 
grandfather had a "bad secret" that he could not tell anyone and was 
based on other statements by Jacob which suggested he had been 
sexually abused. DCFS made a further finding of credible evidence of 
child abuse and/or neglect. These findings, combined with the 
findings of the doctors during the psychiatric evaluations, led 
Ginger to stop the visits between Jacob and his grandparents and to 
seek the modification and later termination of Carolyn's and John's 
visitation privileges. 

 The trial court denied Ginger's motion challenging the 
constitutionality of the grandparental visitation statute. The trial 
court chose to modify the visitation privileges of Carolyn and John 
to supervised visitation to take place one Sunday per month for 
three hours in the home of Jacob's maternal grandmother, instead of 
terminating visitation. Carolyn and John appealed the restriction of 
visitation. Ginger cross-appealed the ruling of the trial court 
denying her motion to find the grandparental visitation statute 
unconstitutional. 

 On April 24, 1997, John West moved for a voluntary dismissal of the 
grandparents' appeal, Carolyn West then being deceased. John's 
motion was granted. Ginger proceeded with her cross-appeal. 

 The issue presented for review on appeal is whether section 607(b) 
of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 
ILCS 5/607(b) (West 1996)), insofar as it pertains to grandparental 
visitation privileges, is unconstitutional as violative of the 
fundamental liberty rights of parents to the care and custody of 
their children, which are guaranteed to them by the fourteenth 
amendment to the United States Constitution and article 1, section 
2, of the Constitution of the State of Illinois. 

 We begin our analysis of this issue with the presumption that the 
challenged provision of the visitation statute is constitutional. 
See Tully v. Edgar, 171 Ill. 2d 297, 304, 664 N.E.2d 43, 47 (1996). 
The court has a duty to construe enactments so as to sustain their 
constitutionality and validity, if reasonably possible. People v. 
Warren, 173 Ill. 2d 348, 355, 671 N.E.2d 700, 705 (1996). Keeping 
these principles in mind, we now proceed with our analysis. 

Ginger begins her argument with a discussion of the long- recognized 
constitutionally protected interest of parents to raise their 
children without undue State influence. See Meyer v. Nebraska, 262 
U.S. 390, 399, 67 L. Ed. 1042, 43 S. Ct. 625, 626 (1923); Pierce v. 
Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 
510, 534-35, 69 L. Ed. 1070, 45 S. Ct. 571-73 (1925); Prince v. 
Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438, 442 
(1944); Wisconsin v. Yoder, 406 U.S. 205, 235, 32 L. Ed. 2d 15, 92 
S. Ct. 1526, 1543 (1972); Santosky v. Kramer, 455 U.S. 745, 753, 71 
L. Ed. 2d 599, 102 S. Ct. 1388, 1394 (1982). However, this 
constitutionally protected parental interest is not wholly without 
limit or beyond regulation. Prince v. Commonwealth of Massachusetts, 
321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438, 442 (1944). "[T]he 
state has a wide range of power for limiting parental freedom and 
authority in things affecting the child's welfare." Prince, 321 U.S. 
at 167, 88 L. Ed. 645, 64 S. Ct. at 442. In fact, the entire 
familial relationship involves the State. 

 When two people decide to get married, they are required to first 
procure a license from the State. If they have children of this 
marriage, they are required by the State to submit their children to 
certain things, such as school attendance and vaccinations. 
Furthermore, if at some time in the future the couple decides the 
marriage is not working, they must petition the State for a divorce. 
Marriage is a three-party contract between the man, the woman, and 
the State. Linneman v. Linneman, 1 Ill. App. 2d 48, 50, 116 N.E.2d 
182, 183 (1953), citing Van Koten v. Van Koten, 323 Ill. 323, 326, 
154 N.E. 146 (1926). The State represents the public interest in the 
institution of marriage. Linneman, 1 Ill. App. 2d at 50, 116 N.E.2d 
at 183. This public interest is what allows the State to intervene 
in certain situations to protect the interests of members of the 
family. The State is like a silent partner in the family who is not 
active in the everyday running of the family but becomes active and 
exercises its power and authority only when necessary to protect 
some important interest of family life. Taking all of this into 
consideration, the question no longer is whether the State has an 
interest or place in disputes such as the one at bar, but it becomes 
a question of timing and necessity. Has the State intervened too 
early or perhaps intervened where no intervention was warranted? 
This question then directs our discussion to an analysis of the 
provision of the Act that allows the challenged State intervention 
(750 ILCS 5/607(b) (West 1996)). 

Before beginning our analysis, we must note that the appeal of the 
ruling in this case is based solely on constitutional grounds. 

The grandparental visitation provision states:  

"(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 
subsection (b) 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 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 1996).  

This provision has undergone many amendments since its introduction 
into Illinois statutory law. See E. Burns, Grandparent Visitation 
Rights: Is it Time for the Pendulum to Fall?, 25 Fam. L.Q. 59, 64 
(1991). A close look at the history of this provision provides some 
insight into what the legislature was trying to achieve in enacting 
it. 

The provision was first construed as recognizing a grandparent's 
right to seek visitation after the parents divorced. 25 Fam. L.Q. at 
64, citing Ill. Rev. Stat. 1981, ch. 40, par. 607(b). Less than one 
year after the provision's enactment, it was amended to provide 
grandparents a right to seek visitation privileges if one of the 
child's parents died. Ill. Rev. Stat., 1982 Supp., ch. 40, par. 607
(b); see 25 Fam. L.Q. at 64-65. In 1985, the provision was again 
amended to allow for visitation privileges when the child had been 
adopted by the surviving parent or the custodial parent's spouse. 
Ill. Rev. Stat. 1985, ch. 40, par. 607(b); see 25 Fam. L.Q. at 65. 
In 1989, the provision was again amended. Language in this amendment 
allowed the grandparents to seek visitation privileges regardless of 
whether the family was still intact. Ill. Rev. Stat. 1989, ch. 40, 
par. 607(b); see 25 Fam. L.Q. at 65. That language was revised less 
than one year after becoming law. Pub. Act 86-1452, eff. July 1, 
1991; Ill. Rev. Stat., 1990 Supp., ch. 40, par. 607(b); see 25 Fam. 
L.Q. at 65.  

The statute presently provides that a grandparent is permitted under 
limited circumstances to seek visitation privileges even if the 
parents are not divorced. These circumstances include the following: 

(1) when parents are not living together on a permanent or 
indefinite basis, 

(2) when one of the parents has been missing for more than one month 
without the other spouse knowing his or her whereabouts, or 

 (3) when one of the parents joins in the petition with the 
grandparents. 750 ILCS 5/607(b)(1)(A),(B),(D) (West 1996). For the 
most part, these circumstances parallel the common law "special 
circumstances" recognized by Illinois case law that predated the 
statute.  

A review of the following cases is instructive. In Solomon v. 
Solomon, 319 Ill. App. 618, 49 N.E.2d 807 (1943), after a divorce, 
the mother was granted custody of the child, and the father was 
given visitation with the child at reasonable times. The father was 
later inducted into the armed forces and was unable to exercise his 
visitation. He joined in a petition with his parents so that they 
could have visitation with the child. The grandparents were given 
visitation privileges with the child. Solomon, 319 Ill. App. at 619, 
49 N.E.2d at 808. The Solomon case parallels section 607(b)(1)(D) of 
the Act (750 ILCS 5/607(b)(1)(D) (West 1996)).  

In Boyles v. Boyles, 14 Ill. App. 3d 602, 603, 302 N.E.2d 199, 200 
(1973), after the death of their daughter, who had been granted 
custody of the child in a divorce proceeding, the maternal 
grandparents sought visitation privileges. Visitation was ordered by 
the court with the consent of the father, who later refused to 
comply with the order. Boyles, 14 Ill. App. 3d at 603, 302 N.E.2d at 
200. On appeal, the court held that the father was required to 
comply with the court order because the child had visited with the 
grandparents every day prior to the mother's death and the father 
had agreed to the visitation in the court order. Boyles, 14 Ill. 
App. 3d at 604, 302 N.E.2d at 201. "We believe where a parent has 
died, the continuation of the relationship between child and 
grandparents, which may be promoted by visitation, may be a positive 
benefit affecting the best interest of the child." Boyles, 14 Ill. 
App. 3d at 604, 302 N.E.2d at 201. This rule announced in the Boyles 
case coincides with both section 607(b)(1)(C) and section 607(b)(3) 
(750 ILCS 5/607(b)(1)(C), (b)(3)(West 1996)).  

We do not believe that the legislature was attempting to change the 
common law as announced in these decisions. "A statute will be 
construed as changing common law only to the extent that the terms 
thereof warrant, or as necessarily implied from what is expressed." 
Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039, 430 N.E.2d 652, 654 
(1981), citing Sternberg Dredging Co. v. Sternberg's Estate, 10 Ill. 
2d 328, 140 N.E.2d 125 (1957); Acme Fireworks Corp v. Bibb, 6 Ill. 
2d 112, 126 N.E.2d 688 (1955); People v. Monoson, 75 Ill. App. 3d 1, 
393 N.E.2d 1239 (1979). "Repeal of the common law by implication is 
not favored." Hawkins, 102 Ill. App. 3d at 1039, 430 N.E.2d at 654. 
Rather, we believe that the legislature was codifying the common law 
and simultaneously expanding grandparental visitation. 

The 1989 amendment allowed grandparents to seek visitation 
regardless of the status of the nuclear family. In other words, 
under the provision as it existed for that short time in 1989 and 
1990, a grandparent could seek visitation with a child even when 
both of his or her parents were alive and cohabiting. That 
amendment's short-lived existence supports the principle that the 
State will not seek to intervene in a undisrupted family. This 
deference allows both parents to make joint decisions acting in the 
best interest of the family as a whole. "[This amendment] comes as a 
`promise of relief to some who feel the state has overstepped its 
purview by meddling with what they call a sacred right for parents: 
to decide who[m] their children should have contact with.'" 25 Fam. 
L.Q. at 75, quoting Kendall, Grandparents' Rights Challenged, Chi. 
Trib., June 4, 1990, 2, at 1. Only in the case of a disrupted 
family does the State seek to intervene, and only then to protect 
the interests of those who cannot protect their own interests. This 
is the same way the issue of grandparental visitation was handled in 
the courts before the enactment of the visitation statute.  

This disparate treatment of married parents versus divorced or 
widowed parents could arguably give rise to an equal protection 
argument. This can be quickly dispelled.  

In Kujawinski v. Kujawinski, 71 Ill. 2d 563, 568-69, 376 N.E.2d 
1382, 1384 (1978), Mr. Kujawinski was a party to a pending divorce 
action. He challenged the constitutionality of certain provisions of 
the Act. Specifically, he challenged the provisions which allowed 
the court to order a divorced parent to provide support to children 
greater than that required by married parents. Kujawinski, 71 Ill. 
2d at 569, 376 N.E.2d at 1385. Our supreme court held that there is 
a legitimate basis for distinguishing between a disrupted family and 
an intact family because in a disrupted family, especially one 
disrupted by divorce, the parents may not be as willing, or able 
because of mixed feelings for their ex-spouse, to consider the best 
interests of their children. Kujawinski, 71 Ill. 2d at 580, 376 
N.E.2d at 1390. "The legislature is not restrained from remedying a 
particular problem merely because that problem exists for one group 
of individuals and not for another." People v. Warren, 173 Ill. 2d 
348, 365, 671 N.E.2d 700, 709 (1996). Therefore, it is not a 
violation of divorced or widowed parents' equal protection rights 
for the State to allow grandparents to seek visitation privileges, 
because the problems that arise after the death of one parent or 
divorce are not usually present in an intact family. 

"In assessing the best interest of the child in matters of 
[visitation], the court must consider `all matters that have a 
bearing upon the welfare of the child.'" In re Violetta B., 210 Ill. 
App. 3d 521, 534, 568 N.E.2d 1345, 1353 (1991), quoting People ex 
rel. Edwards v. Livingston, 42 Ill. 2d 201, 209, 247 N.E.2d 417, 421 
(1969). Among the appropriate matters to consider are: (1) the 
nature and length of the child's relationship with persons seeking 
visitation and (2) the effect of visitation on the emotional and 
psychological well-being of the child. Violetta B., 210 Ill. App. 3d 
at 534, 568 N.E.2d at 1353. 

 We realize that the challenged statute and the common law it 
codifies allow the State to act upon a constitutionally recognized 
fundamental right of parents. Where a statute infringes upon a 
fundamental constitutional right, that statute may be upheld only if 
a compelling State interest exists to achieve a stated goal. Tully 
v. Edgar, 171 Ill. 2d 297, 304-05, 664 N.E.2d 43, 47 (1996). The 
least restrictive means necessary must be used to attain the goal. 
Tully, 171 Ill. 2d at 305, 664 N.E.2d at 47. We find that the State 
has a compelling interest in maintaining and safeguarding an 
established grandparent-grandchild relationship where it has been 
proven by the grandparent that it is in the best interest of the 
child for the relationship to continue.  

We further find that this statute is narrowly tailored to achieve 
the goal of maintaining and promoting a grandparent-grandchild 
relationship. First, it does not give grandparents an automatic 
right to visitation. The visitation statute states that "[t]he court 
may grant ***" (emphasis added) a grandparent's right to visitation 
and states that a noncustodial parent is "entitled to reasonable 
visitation" (emphasis added). 750 ILCS 5/607 (West 1996). This is an 
important distinction. It shows that the legislature was conscious 
of parents' superior right to the custody and care of their 
children. Furthermore, the provision does not allow the grandparents 
to seek court-ordered visitation while the nuclear family is 
intact.  

For the foregoing reasons, we find that the grandparental visitation 
provision of section 607(b) is constitutional under both the 
fourteenth amendment to the United States Constitution and under 
article 1, section 2, of the Illinois Constitution of 1970. We were 
asked to address only the constitutional issue. We were not asked to 
review the circuit court's factual determination. Therefore, the 
order of the circuit court is affirmed. 

Affirmed. 

 WELCH, P.J., and KUEHN, J., concur. 
 
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