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In re Visitation with C.B.L., No. 1-98-2011

1st District, December 16, 1999

FOURTH DIVISION

JUSTICE HOURIHANE delivered the opinion of the court:

Petitioner A.B. appeals from an order of the circuit court which dismissed her petition for visitation with minor C.B.L. for lack of standing. On appeal, petitioner contends she alleged facts sufficient to establish her standing, as a common law de facto parent or as an individual in loco parentis, to petition for visitation with C.B.L.

For the reasons that follow, we affirm.

BACKGROUND

In July 1997, petitioner sought an order from the circuit court granting her visitation with C.B.L. pursuant to section 607 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607 (West 1998)). Petitioner also requested "such other relief as [the circuit court] deem[ed] equitable and just." The facts set forth within the underlying petition for visitation are undisputed. Petitioner and respondent, H.L., met in 1984. A long-term lesbian relationship followed. Respondent was artificially inseminated in 1993. She gave birth to C.B.L. in December of that same year. Petitioner was dutifully involved in all of the preparations prior to the birth. She was also equally involved in the care of C.B.L. for the next year-and-a-half. In 1995, petitioner and respondent ended their relationship. Respondent moved to Chicago with C.B.L. in 1996. Petitioner has been refused all contact with C.B.L. since March 1997.

In response to the aforementioned petition, respondent moved the circuit court for dismissal pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)). Respondent argued that petitioner lacked standing under section 607 of the Marriage Act in that she was neither a parent, grandparent, great-grandparent nor sibling of C.B.L.

Petitioner answered, claiming that as a former lesbian life partner of respondent, she had standing to petition for visitation with C.B.L. Petitioner argued that she had alleged facts sufficient to establish her standing as a common law de facto parent or as an individual in loco parentis to C.B.L.

The circuit court dismissed the petition for visitation. It specifically held that the common law did not apply.

This appeal followed.⁽¹⁾

DISCUSSION

On appeal, petitioner has abandoned her contention that the allegations within her petition were sufficient to establish her standing under section 607 of the Marriage Act. Petitioner solely contends on appeal that the allegations within her petition were sufficient to provide her standing as a common law de facto parent or as an individual in loco parentis to C.B.L.

For decades prior to any express statutory pronouncement, Illinois courts recognized the standing of grandparents to petition for visitation with minor grandchildren under certain special circumstances. E.g., Boyles v. Boyles, 14 Ill. App. 3d 602, 604, 302 N.E.2d 199 (1973); Lucchesi v. Lucchesi, 330 Ill. App. 506, 511-12, 71 N.E.2d 920 (1947); Solomon v. Solomon, 319 Ill. App. 618, 621-22, 49 N.E.2d 807 (1943). Even after the enactment of the Marriage Act, which expressly provided for visitation for noncustodial parents (Ill. Rev. Stat. 1977, ch. 40, par. 607), Illinois courts continued to recognize the common law standing of grandparents to petition for visitation with minor grandchildren under special circumstances. Hawkins v. Hawkins, 102 Ill. App. 3d 1037, 1039, 430 N.E.2d 652 (1981). Eventually, our General Assembly codified the common law of grandparent visitation within section 607 of the Marriage Act. West v. West, 294 Ill. App. 3d 356, 361, 689 N.E.2d 1215 (1998); see Ill. Rev. Stat. 1981, ch. 40, par. 607(b). Several other amendments to section 607 followed. West, 294 Ill. App. 3d at 361. Through the intervening years, great-grandparents, siblings and stepparents have all been afforded standing to petition for visitation with a minor under section 607. See 750 ILCS 5/607(b)(West 1998).

A statute which concerns an area formerly covered by the common law, such as section 607 of the Marriage Act, "should be construed as adopting the common law unless there is clear and specific language showing a change in the common law was intended by the legislature." Proud v. W.S. Bills & Sons, Inc., 119 Ill. App. 2d 33, 45, 255 N.E.2d 64 (1970); Filtertek, Inc. v. Department of Revenue, 186 Ill. App. 3d 208, 217, 541 N.E.2d 1385 (1989); Balmes v. Hiab-Foco, A.B., 105 Ill. App. 3d 572, 574-75, 434 N.E.2d 482 (1982); Berlin v. Nathan, 64 Ill. App. 3d 940, 956, 381 N.E.2d 1367 (1978). A change in the common law may also be shown through the enactment of general and comprehensive legislation which specifically describes "course of conduct, parties, things affected, limitations and exceptions ***." 2B N. Singer, Sutherland on Statutory Construction