Over the River and Through the Woods-Again: How Will Courts Interpret the New Grandparent Visitation Act

Posted on July 26, 2011 by mgoldberg

I. Introduction
After a two-year hiatus, Illinois grandparents once again have the statutory right to petition for visitation with their grandchildren. On August 12, 2004, Governor Blagojevich signed House Bill 4318 (P.A. 93-0911, effective January 1, 2005), which reestablishes standing, albeit in a scaled-down form, for Illinois grandparents¹ to petition for court-imposed visitation.² This article will examine the new Grandparent Visitation Act, pointing out the significant changes from the former Act, and discuss how the new Act may be interpreted by Illinois Courts. Also, several recent grandparent visitation cases from other states will be discussed. Finally discussed will be House Bill 1020, (P.A. 93-1026, effective January 1, 2005) which allows grandparents, in certain circumstances, to petition for custody of their grandchildren upon the death of a parent.
In April of 2002, the Illinois Supreme Court held in Wickham v. Byrne that the former Illinois Grandparent Visitation Act. (750 ILCS 5/607 (b) (1) and (3)) was facially unconstitutional.³ The Wickham case is supportive of parents and suspicious of governmental intrusion, two quintessentially American values. The Court reasoned that between fit parents and the rest of the world, parents’ decisions regarding their minor children are presumed to be controlling.
The Wickham decision came shortly after the U.S. Supreme Court case of Troxel v. Granville 4which ruled 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.
The Wickham Court reasoned that the old Act was fatally flawed since it did not contain a presumption in favor of a parent’s decision regarding grandparent visitation and since 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.
The Wickham Court held that 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. The 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 and ruled that the former Grandparent Visitation Act, which used that test,⁵ was facially unconstitutional.⁶ Shortly after the Wickham opinion, I wrote an article in the September, 2002 Illinois Bar Journal questioning the future of grandparent visitation in Illinois, in light of the strong pro-parent language contained in that case, as well in Troxel. While the new Act makes it more difficult for grandparents to receive court-imposed visitation and acknowledges a parent’s fundamental right to parent his or her child, after Wickham and Troxel it remains to be seen whether the new Grandparent Visitation Act, even one much more restrictive than the former Act, can survive constitutional muster.
II. Demographic Changes Leading to the New Act
In a sense it was inevitable that Illinois would enact a revised Grandparent Visitation Act. Since Wickham Illinois has been the only state in the United States without such a statute, and there was significant political pressure from groups such as the American Association of Retired Persons to draft a new one. Indeed, the demographic changes of the past century make it difficult to speak of an average American Family. The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many others are raised in single-parent households. Grandparent visitation statutes reflect several changes in American culture, including increases in life expectancy of senior citizens, variations in the composition of the nuclear family and delegation of parental duties to non-parents.
Americans now live longer through advances in medicine and the overall quality of living. In 1930, the average life expectancy for an American was 59.7 years.⁷ Today, the average life expectancy in the United States is 77.1 years, an increase of 17.4 years.⁸ The 2000 census revealed a pertinent, and somewhat startling statistic: 40% of the households in Illinois list grandparents as the primary caregivers for their children.⁹
In addition to the aging of the American population, increases in the numbers of double income families and single parent homes and other variations of the traditional concept of the American family justify the need for the new Act. Persons outside the nuclear family are called upon with increasing frequency to take part in the daily tasks of child rearing. Children develop significant emotional bonds with persons who attend to their constant physical, emotional and psychological needs.¹⁰ It is clear that more non-parents, especially grandparents, are undertaking quasi-parental roles in the lives of children today. Such quasi-parental duties include, preparing the child’s meals, providing child care, attending the child’s medical and educational needs, supervising the child’s social relationships, participating in the child’s extracurricular and social activities and disciplining the child.¹¹
Countering these changes in the make-up of the traditional family and the delegation of parental duties to non-parents is the liberty interest that parents have in the care, custody and control of their children. The legislative history of the new Illinois Grandparent Visitation Act indicates that the Legislature struggled with these competing concepts¹²
III. Wickham v. Byrne
To understand the reasoning behind the changes in the new Act, it is necessary to briefly review Wickham and Troxel.
The Wickham Court found sections 607(b)(1) and (3) unconstitutional on their face, stating that no set of circumstances exist under which the Act would be valid. The facts of Wickham were as follows: Paul Byrne lost his wife to a terminal illness less than a year after their daughter was born. After his wife’s death, Paul agreed to maintain the relationship between his wife’s mother, Virginia Wickham and the child, often driving the child 50 minutes to Virginia’s home for visits. Virginia, however, wanted more time with her granddaughter and asked Paul for unsupervised overnight visitation. Paul felt that overnight visitation was inappropriate, but agreed to continue to drive his daughter to Virginia’s home when his schedule permitted. Unable to convince Paul to let the child stay at her house overnight, Virginia filed a petition in the circuit of Cook County for grandparent visitation under 750 ILCS 607 (b) (1).¹³
After the hearing on the petition for visitation, the trial court denied overnight visitation, and ordered supervised visitation with the child at Paul’s home for four hours a week. Following the hearing, Paul filed a motion to dismiss the petition, which was denied. Paul then filed an application for an interlocutory appeal under Illinois Supreme Court Rule 308, which was also denied.¹⁴ The Illinois Supreme Court granted Paul’s petition for leave to appeal.¹⁵
The Court determined that the issue involved in Wickham , visitation with grandparents, did not involve a threat to the health, safety or welfare of the children. The Court listed examples of “limited instances” that would justify state interference with parental child rearing rights such as: testing for phenylketonuria at birth (410 ILCS 240/1 (West 2000)); required immunization for diphtheria, pertussis, and tetanus (410 ILCS 315/2 (West 2000)); required hearing and visual examinations (410 ILCS 205/1 et seq. (West 2000)); and prohibited child labor (820 ILCS 205/1 et seq. (West 2000)).
The Wickham Court recognized 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, the Court stated:
“[A]s 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.”

The Wickham Court found a “flaw” in the Grandparent Visitation Act similar to the Washington statute at issue in Troxel in that it permitted visitation if it was determined by the court to be in the best interests and welfare of the child, placing the parent on equal footing with the party seeking visitation rights.¹⁶ The Act did not define that standard nor did it specify the criteria that a court should use to apply it. Frequently, lawyers for the grandparents have directed courts to look to 750 ILCS 602 (best interest criteria for visitation issues between parents) for guidance, but visitation battles between parents are different than those between a parent and grandparent(s), and 602 simply fails to provide courts with adequate guidance to decide grandparent visitation disputes. Moreover, the absence of a best interest provision in 750 ILCS 5/607(b)(1) requiring a court to favor a parent’s wishes regarding visitation or to require a showing that the parent is somehow not fit to make such a decision contradicts the Troxel Court, which found the lack of such criteria pivotal in its ruling, since it determined that a trial court must presume that fit parents act in the best interests of their children.¹⁷
IV. Troxel v. Granville

The Wickham decision was based in large part on the reasoning of the U.S. Supreme Court in Troxel.
A. The Troxel facts

The parents in Troxel, who were never married, had two children. While the parents were living together, the father regularly brought the children to visit with his parents. However, the father committed suicide in May of 1993. Although at first after their son’s death, the Troxels continued to see their grandchildren on a regular basis, by October 1993 the mother informed the Troxels that she wished to limit their visitation with the children to one short visit per month. The grandparents filed a visitation petition soon thereafter.¹⁸ At trial, the grandparents requested two weekends of overnight visitation per month and two weeks of visitation each summer.¹⁹ The trial court granted them visitation one weekend per month, one week during the summer and four hours on both of the petitioning grandparents’ birthdays.²⁰ The Washington Court of Appeals reversed the lower court’s visitation order on the basis that non-parents lack standing to seek visitation under section 26.10.160(3) unless a custody action is pending. The Supreme Court of Washington disagreed with the appellate court’s construction of the statute, holding that the plain language of section 26.10.160(3) gives grandparents standing to seek visitation regardless of whether a custody action is pending. The Washington Supreme Court held, however, that section 26.10.160(3) is an unconstitutional infringement on the fundamental right of parents to rear their children. Specifically, the court found that the statute is too broad because it allows “any person” to petition for forced visitation with the child “at any time” with the only requirement being that the visitation serve the best interest of the child.²¹ The U.S. Supreme Court granted certiorari in 1999.²²
B. The Supreme Court’s Decision
While the U.S. Supreme Court was concerned that under the Washington Statute “any person” may petition the court for visitation,²³ they also found fault with the statute for its failure to take into consideration and give deference to the parent’s estimation of the child’s best interest.²⁴ Furthermore, the Court ruled that 26.10.160 (3) exceeds the bounds of the Due Process Clause because it does not require a showing that the parent is unfit. The Court determined that there is a presumption that fit parents act in their children’s best interests.²⁵
C. Due Process and Fundamental Rights Cases Cited in Troxel
The Troxel Court wrote that the liberty interest at issue –the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by the Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) , the Court held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), they again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” The Court explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”²⁶ The Court returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”²⁷
In a perfect world, parents and grandparents would always agree about the nature and duration of visits with the grandchildren. However, in the real world fit parents and grandparents often drastically disagree on important details of visitation. In the Troxel decision, the Court stated that, when such disputes arise, the trial court must accord at least some special weight to the parent’s determination.²⁸ In her Opinion, Justice O’Connor listed the current state visitation statutes that contain presumptions in favor of the parent: Cal. Fam.Code Ann. 3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in child’s best interest if parents agree that visitation rights should not be granted); Me.Rev.Stat. Ann., Tit. 19A, 1803(3) (1998) (court may award grandparent visitation if it is in the best interest of the child and “would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child”); Minn.Stat. 257.022(2)(a)(2) (1998) (court may award grandparent visitation if it is in the best interest of the child and “such visitation would not interfere with the parent-child relationship”); Neb.Rev.Stat. 43- 1802(2) (1998) (court must find “by clear and convincing evidence” that grandparent visitation “will not adversely interfere with the parent-child relationship”); R.I. Gen. Laws 15-5-24.3(a)(2)(v) (Supp.1999) (grandparent must rebut, by clear and convincing evidence, presumption that parent’s decision to refuse grandparent visitation was reasonable); Utah Code Ann. 30-5-2(2)(e) (1998) (same); Hoff v. Berg, 595 N.W.2d 285, 291-292 (N.D.1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no “compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child’s best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor child”).²⁹

V. Changes To The Grandparent Visitation Act
The following changes have been made to the Illinois Grandparent Visitation Act, in sequential order:

A. The new Act requires a grandparent, great-grandparent or sibling of a child to show an unreasonable denial of visitation by a parent in order to have standing to petition for court-imposed visitation.³⁰ 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.³¹ 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”); R.I. 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”).³² Now, the new Act contains similar language.
B. The second significant change in the Act is based on the Illinois Supreme Court’s holding in Lulay v. Lulay. ³³ 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.”³⁴
C. 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 have 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 parent’s 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.
D. 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 visitation³⁵ to one which 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,”³⁶ 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.”³⁷

E. A fifth change includes a non-exhaustive list of factors for a trial court to consider when determining whether to grant grandparent visitation.³⁸ 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 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; and
-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.

F. A sixth change specifically states that reasonable visitation does not require overnight visits³⁹, and a seventh change alters the requirements for modifying a visitation order, making it more difficult to do so.⁴⁰
G. 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.⁴¹ This language was not in the initial drafts of the new Act, but was specifically requested by members of the House Judiciary Committee.

VI. Recent Third-Party Visitation Cases In Other States
A. The Alaska Supreme Court recently held that its third party visitation statute⁴² is constitutional as applied and directed the trial court on remand to determine by clear and convincing evidence whether it is in the best interests of the child that visitation with the grandparents be provided.⁴³
B. The Supreme Court of Iowa has concluded that Iowa Code § 598.35(1) (2001) is unconstitutional because it permits grandparent visitation to take place over the objection of a parent and in doing so fails to impose the essential limitations demanded by Troxel to narrowly serve the compelling interest to intervene and to safeguard against unwarranted intrusions into the decisions of fit parents. The Iowa Supreme Court has determined that that statute is deficient in three particulars: on its face it not only fails to recognize the degree of harm or potential harm to the child needed to support state intervention, but it fails to require a threshold finding of parental unfitness and fails to require the court to consider a parent’s objections to allowing visitation.⁴⁴
C. The Missouri Supreme Court recently held that a trial court is required to consider the parents’ right to make decisions regarding their children’s upbringing, determine the reasonableness of those decisions, and then balance the interests of the parents, child, and grandparents in determining whether grandparent visitation should be ordered pursuant to Mo. Rev. Stat. § 452.402 (2000). ⁴⁵ Although parental decisions are given material weight, the trial court may determine the reasonableness of those decisions based on the evidence. The court is not required to accept blindly a parent’s reason for denying visitation. Where the trial court determines that the parents’ explanation is not credible, the court may find the visitation denial unreasonable and grant grandparent visitation rights.⁴⁶
D. After noting that in the Troxel case another state’s grandparent visitation statute had been invalidated on substantive due process grounds for unduly interfering with parents’ rights to raise their children, the New Jersey Supreme Court held that if properly interpreted to require an initial finding based on the preponderance of the evidence that the children would be harmed if grandparental visitation were not permitted, before any consideration of the children’s best interests occurred, the New Jersey statute, N.J. Stat. Ann. § 9.2-7.1 , would pass constitutional muster. In the case before it, the court held that the trial court had in fact analyzed the situation according to this approach, and found that continued visitation was the one way the children would be able to stay in touch with the memory of their mother and with her family. Therefore, the statute had been properly applied.⁴⁷
E. The Florida Supreme Court, which sits in the state where one would think senior citizens would receive the most liberal treatment, has struck two fatal blows to its State grandparent visitation statute.⁴⁸ In its first decision, the Florida Supreme Court struck down that portion of the statute, which permitted grandparent visitation in an intact family.⁴⁹ In the second case, Von Eiff , the Florida Supreme Court was confronted with that portion of the statute, which permitted grandparent visitation where one of the parents is deceased. Florida Supreme Court went on to state:
“We find nothing in the unfortunate circumstances of one biological parent’s death that would affect the surviving parents right of privacy in a parenting decision concerning the child’s contact with her maternal grandparents. Philip Von Eiff, whom the trial court found to be a “loving, nurturing and fit” parent continues to enjoy a right of privacy in his parenting decisions despite the death of the child’s biological mother.” Id.

F. In Skov v. Wicker ⁵⁰, the Kansas Supreme Court concluded that the district court erred in holding that its grandparent visitation statute was unconstitutional. The Supreme Court found that on remand the grandmother and great-grandparents had the burden of proving that visitation was in the child’s best interest and that a substantial relationship with the grandchildren existed. The Court stated in addition, that the trial court must give special weight to the fundamental presumption that a fit parent will act in the best interests of his or her child
G. The Maine Supreme Court held in Rideout v. Riendeau ⁵¹, that the Maine grandparent visitation statute was narrowly tailored to serve compelling state interest of addressing children’s relationship with people who had cared for them as parents, and thus did not violate Due Process Clause or constitutional rights of parents, where grandparents had acted as parents for significant periods of time. The Court reasoned that cessation of contact with a grandparent whom a child viewed as a parent could have had a dramatic, even traumatic, effect on the child, giving the State a compelling interest in providing grandparents with such a relationship with a forum to seek contact, holding Me. Rev. Stat. Ann. tit. 19-A, § 1803(1) (B), which required a “sufficient existing relationship” between grandparent and child, could have been applied in a manner consistent with the Due Process Clause of the United States Constitution.
H. At issue in Linder v. Linder ⁵², was the constitutionality of the Arkansas Grandparental Visitation Act, codified at Ark. Code Ann. § 9-13-103 (Repl. 2002). Even though the Act gives no presumption to the parent’s wishes, and procedurally favors the granting of grandparental visitation, and, thus, implicitly shifts the burden of proof to the parent, the Arkansas Supreme Court refused to find the Act facially unconstitutional, but did rule that it was unconstitutional as applied to the facts of the case. As a result Section 9-13-103 was amended by the General Assembly in 2003.
I. In Glidden v. Conley53, the Vermont Supreme Court undertook to interpret the grandparent visitation statute, Vt. Stat. Ann. tit. 15, § 1011(a) , in such a manner as to uphold its constitutionality. The United States Constitution protected a fit parent’s due process right of personal choice in child rearing, and overly broad grandparent visitation statutes had been struck down for interfering with that right in the absence of a compelling need in the child’s best interests. The high court therefore interpreted the statute as including a presumption in favor of a fit parent’s decisions regarding visitation by grandparents, and, since the trial court had not given such regard to the father’s decisions, its application of the statute was unconstitutional.
VII. House Bill 1020 gives grandparents standing to petition for custody of their grandchildren in the following circumstances:
When one of the parents is deceased, by a grandparent who is a parent or stepparent of a deceased parent, by filing a petition, if one or more of the following existed at the time of the parent’s death:
(A) the surviving parent had been absent from the marital abode for more than one month without the deceased spouse knowing his or her whereabouts;
(B) the surviving parent was in State or federal custody; or
(C) the surviving parent had: (i) received supervision for or been convicted of any violation of Article 12 of the Criminal Code of 1961 directed towards the deceased parent or the child; or (ii) received supervision or been convicted of violating an order of protection entered under Section 217, 218, or 219 of the Illinois Domestic Violence Act of 1986 for the protection of the deceased parent or the child.⁵⁴
This legislation was created in response to several recent cases around the state in which grandparents essentially raised their grandchildren when both parents were alive, but were unable to petition for custody when a parent died and the surviving parent-who previously had little or nothing to do with the child- did not want to relinquish custody. This Bill has met with criticism from the Illinois State Bar Association, since it allows grandparents to petition for custody in circumstances where the surviving parent is legally fit, and does not require a substantial prior relationship between the grandparent and grandchildren prior to the death of the parent. Furthermore, a surviving parent who has previously been convicted or even granted supervision for domestic battery against the deceased parent, can be forced to fight a custody petition against the his former in laws. It is not clear that this new law will past constitutional muster.
VIII. Conclusion
The new Grandparent Act incorporates the reasoning behind the decisions in Wickham and Troxel and borrows language from other state third-party visitation statutes. Wickham unambiguously supports a parent’s right to raise his or her children without interference from the state unless the health, safety or welfare of the children are at issue; and significantly raised the bar to court-imposed third-party visitation. Significantly, the vast majority of the states have viable grandparent visitation statutes.⁵⁵ The former Act gave no deference to a parent’s wishes and allowed the state to inject itself into the private realm of the family, absent a showing that a parent is unfit or that there is some harm that will befall the child. As indicated by the Troxel and Wickham Courts these omissions were fatal to the Act’s survival, and caused the Act to contravene the traditional presumption that a fit parent will act in the best interest of his or her child. A review of recent state supreme court cases involving grandparent visitation indicates that a fit parent must be given deference and that a more stringent standard than “best interest” must be invoked before visitation will be ordered. Now that the U.S. and Illinois Supreme Courts have spoken on the issue of grandparent visitation, it remains to be seen if the new Act is constitutional.

ABOUT THE AUTHOR

Michael K. Goldberg is a partner at the Chicago law firm of Goldberg & Frankenstein, LLC, where he concentrates in general civil litigation including family law matters. Michael argued before the Illinois Supreme Court in Wickham F on behalf of the parent, Mr. Byrne. He also drafted the new Act at the direction of State Representative Pat Lindner and State Senator John Cullerton. He also represents physicians and other professionals who are before the Illinois Department of Professional Regulation, as well as physicians in hospital peer review and privileging matters. Before joining Goldberg & Frankenstein, LLC, Michael worked for five years as an Assistant State’s Attorney for Cook County. He can be reached at (312) 930-5600 or at mgoldberg@goldberglawoffice.com.

1 Great-grandparents and siblings of a minor child may also petition for visitation under the new Act.
2 In the interest of full disclosure, it should be noted that I assisted Illinois State Senator Patricia Lindner in drafting HB4318.
3 Wickham v. Byrne , 199 Ill. 2d 309, 263 Ill. Dec. 799, 769 N.E.2d 1 (2002).
4 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)
5 750 ILCS 5/607 (b) (1) and (3).
6 Wickham v. Byrne 2002 Ill. LEXIS 313 (April 18, 2002).
7 See Joan C. Bohl, The “Unprecedented Intrusion”: A Survey and Analysis of Selected Grandparent Visitation Cases, 49 Okla. L. Rev. 29, 29-30 (1996).
8 Id.
9 Chicago Sun-Times, 2000 Census Report, page 6, May 15, 2002
10 88 Iowa L.Rev. 865, 913.
11 Id.
12 See transcript of the Illinois House Judiciary Committee Hearing, February 25, 2004.
Wickham v. Byrne 2002 Ill. LEXIS 313, at page 2 (April 18, 2002).
14 Id. at page 3
15 See 177 Ill. 2d R. 315 (a).
16 750 ILCS 5/607(b)(1).
17 Troxel , 530 U.S. at 64, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061, 2062 citing Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979).
18 In re Smith, 137 Wash.2d 1, 6, 969 P.2d 21, 23-24 (1998); In re Troxel, 87 Wash.App. 131, 133, 940 P.2d 698, 698-699.
19 See 87 Wash.App., at 133-134, 940 P.2d at 699.
20 137 Wash.2d at 6, 969 P.2d, at 23.
21 . In re Smith , 137 Wn. 2d 1, 12, 969 P.2d 21, 26-27 (1998).
22 527 U.S. 1069 (1999).
23 750 ILCS 5/607 allowed only grandparents, great-grandparents and siblings to petition for visitation.
24 See Troxel v. Granville at page 67.
25 Id. at page 69 citing Parham v. J.R. 444 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).

26 Id. , at 535, 45 S.Ct. 571
27 Id., at 166, 64 S.Ct. 438.

29 Id. at page 70
30 750 ILCS 5/607 (a-5).

32 Troxel at page 72.
33 193 Ill. 2d 455, 250 Ill. Dec. 758, 739 N.E.2d 521 (2000).
34 750 ILCS 607 (a-5)(1)(B)
35 750 ILCS 5/607 (b) (3) of the pre-Wickham Act
36 750 ILCS 5/607 (b) (1) and (3) of the pre- Wickham Act.
37 750 ILCS 5/607 (a-5) (3)
38 750 ILCS 5/607 (a-5) (4).
39 750 ILCS 5/607 (a-5) (5).
40 750 ILCS 5/607 (a-7) (1) and (2)
41 750 ILCS 5/607 (a-7) (3)
42 AS 25.20.060(a).
43 Evans v. McTaggart 88 P.3d 1078; 2004 Alas. LEXIS 47 (2004).
44 Lamberts v. Lillig, 670 N.W.2d 129 2003 Iowa Sup. LEXIS 193 (2003).
45 Barker v. Barker , 98 S.W.3d 532 2003 Mo. LEXIS 38(2003).
46 98 S.W.3d 532, 536.
47 .Moriarty v. Bradt, 177 N.J. 84; 827 A.2d 203; 2003 N.J. LEXIS 699 (2003).
48 Von Eiff vs. Azicri, 720 So.2d 510 (Sup. Ct. Fla. 1998).
49 Beagle vs. Beagle , 678 So. 2d. 1271 (Fla. 1996).
50 32 P.3d 1122; 2001 Kan. LEXIS 611 (2001).
51 2000 ME 198; 761 A.2d 291; 2000 Me. LEXIS 206 (2000).
52 348 Ark. 322, 72 S.W.3d 841 (2002).
53 2003 VT 12; 175 Vt. 111; 820 A.2d 197; 2003 Vt. LEXIS 11 (2003).
54 750 ILCS 5/601 (b)(4)
55 Twenty states have restrictive visitation statutes, in which grandparents may petition for visitation only if a disruption in the child’s nuclear family exists, or if harm will occur if visitation is not allowed. The other states have permissive statutes under which the best interest of the child takes priority whether of not there is a disruption in the nuclear family.