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Posted on Thursday, December 7^th 2006

Michael K. Goldberg

I. Introduction
Approximately one year after its enactment, the Illinois Grandparent Visitation Act has been amended. On July 14, 2006 Governor Blagojevich signed House Bill 4357 (P.A. 94-1026, effective January 1, 2007), which changes the existing law to permit grandparents to intervene in a pending divorce and allows grandparents to petition for visitation even after the adoption of their grandchild. It should be noted that though grandparent rights are being expanded, they are still countered by strong the pro-parent language currently in the Act. This article will examine the new amendments to the Grandparent Visitation Act, and discuss how they may be interpreted by Illinois Courts. Also discussed is a recent Second District Appellate Court case, Felzak v. Hruby, which holds that grandparents have a common law right to petition for visitation with their grandchildren.
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. The Wickham case is supportive of parents and suspicious of governmental intrusion into the parent-child relationship. The Wickham 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 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, was facially unconstitutional. The Wickham decision came shortly after the U.S. Supreme Court case of Troxel v. Granville which 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.
After a full year of implementation, the Grandparent Visitation Act was amended in an attempt to correct some of the problems experienced by the attorneys, judges and litigants involved in grandparent visitation cases. This article will discuss those amendments.
II. Amendments to the Grandparent Visitation Act.
A. The child must be more than one year old.
Effective January 1, 2007, the Grandparent Visitation Act will not apply to a child less than one year old. During the debate about the amendments to the Grandparent Visitation Act in the Illinois Senate, several Senators and some family law attorneys voiced the concern that parents of newborns should not be forced into court concerning visitation disputes, when it is unlikely that a grandparent could develop the type of relationship with a newborn that would be necessary to obtain court ordered visitation.
B. Grandparents no longer have to wait until the end of a divorce or other child custody proceeding to petition for visitation.

This second change is one that will have the greatest impact in family law courtrooms across Illinois. The current statute directs grandparents to wait until a divorce is final to petition for visitation. The new 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.” This change was made in response to the fact that, despite efforts by the Illinois Legislature and Supreme Court to expedite matters pertaining to children, such disputes can take years to complete, and it is harmful to a child to make that child wait to enjoy an important relationship until the end of a protracted legal proceeding. After 2007 grandparents will be able to intervene in divorce and ask the court of visitation.
C. A Grandparent visitation petition must be filed in the county in which the child resides.

§ 750 ILCS 5/601(b) (2) states that a “child custody proceeding is commenced in the court…by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents. Furthermore, Illinois Appellate Courts have held that visitation is a form of custody. And while the argument could be made that /601(b) (2) already contains a venue provision for grandparent visitation, there is now specific venue provision in the Grandparent Visitation Act. The amendment will state that “A petition for visitation with a child be a person other than a parent must be filed in the county in which the child resides.”
D. Missing and/or incarcerated parents.
Under the amended Grandparent Visitation Act, a new trigger for standing is created. As of January 1, 2007, a grandparent who otherwise satisfies the requirements under the Act, will be able to petition for visitation “if a parent has been missing for at least 3 months. For the purposes of the Act a parent is considered missing if the parent’s location has not been determined and the parent has been reported as missing to a law enforcement agency.” Also the language under the current statute, which allows a grandparent to petition for visitation if a parent has been incarcerated for more than one year has been changed. A grandparent will now be able petition for visitation if a parent has been “incarcerated in jail or prison during the three month period preceding the filing of the petition.”
E. Grandparent Visitation Rights Survive a Related Adoption.
Under the current Act, grandparent visitation rights are permanently terminated when a child is adopted. After January 1, 2007, if a child is adopted by a relative or a stepparent, grandparents still have standing to petition for visitation after the adoption. The statute will read that 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.” During the legislative process this language alarmed some adoption advocates, who fear any perception of weakening of the rights of adoptive parents.

III. Felzak v. Hruby-Common law visitation and the new Wickham standard.
Facts:
Ralph Hruby and Deborah Hruby were married in 1977 and had three children together: Shortly after the third child was born, Deborah died of a cerebral hemorrhage. Thereafter, Ralph was married to Sondra Hruby. Soon after her marriage to Ralph, Sondra adopted the Hruby children, Deborah's mother, filed a petition for grandparent visitation with the Hruby children pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/607(b) (West 1992)). The parents claimed the trial court lacked subject matter jurisdiction because § 607(b) was held unconstitutional in Wickham. The appeals court found that because the provisions of § 607(b) allowing for grandparent visitation were inoperative, they conferred no subject matter jurisdiction to hear the grandmother's petition. However, despite invoking § 607(b), her petition framed a case for grandparent visitation, and because the court had subject matter jurisdiction over cases concerning grandparent visitation pursuant to the common law, the court had subject matter jurisdiction over the grandmother's petition.
Decision:
The Felzak Court reasoned that when a statute is void ab initio, the parties are relegated to the rights they had prior to the enactment of the statute.
The court stated that issues pertaining to child custody and visitation were governed by common law prior to the enactment of any statutory scheme regulating these areas of law. A.B. v. H.L. (In re C.B.L.), 309 Ill. App. 3d 888, 890, 723 N.E.2d 316, 243 Ill. Dec. 284 (1999). It is clear that Illinois common law provided visitation rights to grandparents upon a showing of "special circumstances." See Chodzko v. Chodzko, 66 Ill. 2d 28, 4 Ill. Dec. 313, 360 N.E.2d 60 (1976); see also Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 58 Ill. Dec. 620, 430 N.E.2d 652 (1981).


However, the common law that courts must apply to determine whether the trial court had subject matter jurisdiction at the time plaintiff filed her petition is not the common law that existed at the time that the original Grandparent Visitation Act was enacted, but the common law that has evolved from the supreme court's findings in Wickham. Therefore, should the current statute be declared unconstitutional on its face, future courts deciding grandparent visitation must consider what impact the findings of Wickham have on the common-law right to grandparent visitation that existed before there was a Grandparent Visitation Act.
In Wickham, the court held that the state cannot interfere with parents' fourteenth amendment rights to the care, custody, and control of their children unless it does so to protect the health, welfare, or safety of the children. A fit parent is presumed to act in the best interest of her child, and consequently, any interference with parental decision making must begin with this presumption.
The holdings of Wickham narrowed the earlier common-law doctrine that grandparent visitation could be granted under special circumstances, by eliminating a judge's power to make a decision in the child's best interest without the presumption that the parent acted in the child's best interest (see Chodzko, 66 Ill. 2d at 34; Boyles, 14 Ill. App. 3d at 604). Therefore, the court's right to grant grandparent visitation under the common law, while severely limited, was not completely eliminated.

VIII. Conclusion
Grandparent Visitation Act has not been challenged in any reported appellate court case to date. Approximately one year after its enactment, it is being amended to broaden the scope of grandparent visitation, The new amendments will make it easier for grandparents to petition for visitation in a pending custody or visitation dispute between parents and it will allow grandparents to maintain relationships with grandchildren who have been adopted by a “related” adult. The new amendments incorporate the pro-parent reasoning behind the decisions in Wickham and Troxel and borrows language from other state’s third-party visitation statutes
ABOUT THE AUTHOR

Michael K. Goldberg is a partner at the Chicago law firm of Goldberg Law Group, where he concentrates in general civil litigation and oversees the firm’s family law practice. Michael argued before the Illinois Supreme Court in Wickham on behalf of the parent, He also drafted the original Act that took effect in 2005 and the amendments referenced in this article. 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. He can be reached at (312) 930-5600 or at mkgoldberg@gf-lawoffice.com.