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As early as the 1970s Illinois common law providedvisitation rights to grandparents upon a showing of "specialcircumstances." See Chodzko v. Chodzko, 66 Ill. 2d 28 (1976);see also Hawkins v. Hawkins, 102 Ill. App. 3d 1037 (1981). Thelegislature subsequently enacted subsections 607(b)(1) and (3) ofthe Illinois Marriage and Dissolution of Marriage Act (the Act)(750 ILCS 5/607(b)(1) and (3) (West 2000)), authorizing courts toorder grandparent visitation upon a finding that such visitation"is in the best interests and welfare of the child." 750 ILCS5/607(b)(1) (West 2000).

Johnson's wife died while giving birth to M.M.D. onSeptember 30, 1996. M.M.D. subsequently resided in foster carewith the Duncans until July 17, 2001. On that date, the circuitcourt entered an order (1) granting Johnson full and permanentcustody of M.M.D., and (2) adopting a written agreement betweenJohnson and the Duncans regarding the Duncans' visitation rights. Under the visitation portion of the order, the Duncans receivedvisitation rights every Wednesday evening and every otherweekend. They were also authorized, inter alia, to "inspect[M.M.D.'s] school and medical records and to communicate withteachers, school personnel, counselors, and physicians to discuss[M.M.D.'s] standing and progress." Additionally, Johnson wasrequired to "continuously advise" the Duncans of M.M.D.'sprogress at school and inform them "as soon as possible" of anyillness or injury she suffered.

In 2001 this court held that subsection 607(b)(1) of the Actwas unconstitutional--as applied to a particular mother--becauseit interfered with the mother's fundamental right to makedecisions about the care, custody, and control of her child. SeeLangman v. Langman, 325 Ill. App. 3d 101 (2001).⁽¹⁾ Despite theunconstitutionality of the statute, the child's grandparentsargued that their visitation request should be upheld under thepreexisting common law. This court disagreed, stating:

"Rita and Brent [the grandparents] have cited noauthority for the proposition that grandparents whosechild has died and who have been granted limitedvisitation rights to their grandchildren by thesurviving parent may be awarded additional visitationrights as a special circumstance. *** Therefore, wewill not authorize this visitation order under commonlaw." Langman, 325 Ill. App. 3d at 107-08.

In 2002 the Illinois Supreme Court held that subsections607(b)(1) and (3) of the Act are unconstitutional on their face. See Wickham, 199 Ill. 2d 309. The court explained that decisionsmade by fit parents are constitutionally presumed to serve thebest interests of their children. Thus, subsections 607(b)(1)and (3) violate parents' due process rights by allowing circuitcourts to displace parental decisions with judges' opinions aboutthe best interests of children. According to the court, "[s]tateinterference with fundamental parental childrearing rights isjustified [only] in limited instances to protect the health,safety, and welfare of children." Wickham, 199 Ill. 2d at 317.

After Wickham was decided, Johnson filed a petition in thecircuit court seeking termination (or alternatively,modification) of the Duncans' visitation rights. The judgereviewed Wickham and other similar cases and observed thatIllinois' appellate courts had not invalidated the preexistingcommon law regarding grandparent visitation. He also noted thatthe visitation order did not specify whether the Duncans' rightswere based on statutory law or common law. Since common lawprecedent still existed for grandparent visitation, the judgedenied Johnson's petition to terminate the Duncans' rights. Rather than outright termination, the judge said the visitationagreement was "subject to modification just as any othervisitation agreement is in Illinois."

Johnson filed a motion to reconsider, which the judgedenied. The judge reiterated his conclusion that since thecommon law had not been repealed, it still provided a "right of[grandparent] visitation under certain special circumstances." At Johnson's request, the judge certified the following questionfor appellate review:

"[W]hether this Court [the circuit court] hasjurisdiction to enforce a visitation order entered onJuly 17, 2001 based on common law jurisdiction, orwhether, due to the courts' recent decisions of Wickhamv. Byrne *** and Langman v. Langman, the visitationagreement is now void as a matter of law and thereforeterminated."

In his application for leave to appeal, Johnson specificallychallenged the judge's refusal to terminate the Duncans'visitation rights. No issue regarding modification of theirrights has been raised here.

Johnson correctly notes that subsections 607(b)(1) and (3)were intended to supercede the common law pertaining tograndparent visitation. See In re Visitation with C.B.L., 309Ill. App. 3d 888 (1999). However, he fails to acknowledge thelegal effect of enacting an unconstitutional statute. Such astatute is void ab initio (as if it never existed from itsinception). In re Marriage of Sullivan, No. 2--03--0080 (August6, 2003). For this reason, a declaration of unconstitutionalityrelegates the parties to the rights that existed before theunconstitutional statute was enacted. Marriage of Sullivan, No.2--03--0080. Thus, although subsections 607(b)(1) and (3) wereintended to supercede the common law, such intent was neverrealized because the statute was invalid from its inception. Illinois common law still allows courts to order grandparentvisitation under "special circumstances."

Having made this observation, we note that theconstitutional principles outlined in Wickham apply tograndparent visitation in general. Thus, judges must nowincorporate those principles when applying the "specialcircumstances" standard. The Duncans acknowledge this fact intheir brief, stating:

"This court should therefore allow Illinois courts toexercise common law jurisdiction in non-parentvisitation cases so long as the decision making processavoids the constitutional infirmities which the courtsfound in Troxel, Lulay and Wickham. *** [Courts] shouldbe free to continue to develop, on a case-by-casebasis, standards for non-parental visitation that avoid[such] infirmities ***." (Emphasis added.)

We agree with this statement but advise that the Wickham bar isquite high. As noted above, the Supreme Court declared that"[s]tate interference with fundamental parental childrearingrights is justified [only] in limited instances to protect thehealth, safety, and welfare of children." Wickham, 199 Ill. 2dat 317.

In response to the specific question certified by the trialjudge, we hold that the unconstitutionality of subsections607(b)(1) and (3) does not void the Duncan's visitation rights asa matter of law. However, as a matter of fact, the visitationorder must pass scrutiny under the principles articulated inWickham. We express no opinion here about whether the orderpasses such scrutiny. That determination should originate in thecircuit court, and Johnson may elicit it through proceedings tomodify the visitation order.

Finally, the Duncans assert that Johnson waived his claim byfailing to timely appeal the July 17, 2001, visitation order. Wedo not deem his appeal tardy because the basis for it(invalidation of subsections 607(b)(1) and (3)) did not ariseuntil well after July 17, 2001.

For the foregoing reasons, the judgment of the Peoria Countycircuit court is affirmed.

Affirmed.

LYTTON, J., concurs.

SLATER, J., dissents.

JUSTICE SLATER, dissenting:

The majority acknowledges that subsections 607(b) (1) and(3) of the Marriage Act, which authorize grandparent visitation,were intended to supercede the common law pertaining tograndparent visitation. The majority also recognizes that thosestatutory provisions were held unconstitutional in Wickham, 199Ill. 2d 309, 769 N.E. 2d 1, as interfering with a parent'sfundamental right to make decisions about his child. Themajority even admits that "the constitutional principles outlinedin Wickham apply to grandparent visitation in general." Slip op.at 6. Yet the majority nevertheless concludes that grandparentvisitation is authorized under the common law. Surely, themajority is not suggesting that the courts may, under the guiseof common law, do what has been explicitly disallowed by Wickham? The visitation agreement in this case was entered into based on avoid statute and is therefore also void. It infringes onJohnson's fundamental right to raise his child and cannot beretroactively legitimized by reliance on resurrected common lawprinciples. I dissent.

1. Using similar reasoning, the United States Supreme Courthad already invalidated a Washington statute. See Troxel v.Grandville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054(2000). The Illinois Supreme Court later cited Troxel asauthority for declaring subsection 607(b)(1) unconstitutional asapplied. See Lulay v. Lulay, 193 Ill. 2d 455 (2002).