Find Legal Information

Docket Nos. 87874, 87896 cons.-Agenda 13-March 2000.

GAIL LULAY, Appellee, v. MICHAEL LULAY et al., Appellants.

JUSTICE BILANDIC delivered the opinion of the court:

Michael Lulay and Kiley Lulay were divorced on March 11,1996. Pursuant to the judgment for dissolution of marriage,Michael and Kiley have joint custody over their three minorchildren. On November 30, 1998, Gail Lulay, Michael's mother,filed a petition in the circuit court of Du Page County undersection 607(b)(1) of the Illinois Marriage and Dissolution ofMarriage Act (750 ILCS 5/607(b)(1) (West 1998)), seekingvisitation with her three grandchildren.

Michael and Kiley filed a motion to dismiss the petition forvisitation. See 735 ILCS 5/2-615 (West 1998). The parents arguedthat section 607(b)(1) should not be interpreted to permit agrandparent to sue his or her own child for visitation withgrandchildren; and that if the statute is construed in this manner,the statute is an unconstitutional infringement on theirfundamental liberty interest, as parents, in raising their children.The circuit court denied the parents' motion to dismiss. On theparents' request, however, the circuit court certified the followingquestion of law for interlocutory appeal pursuant to SupremeCourt Rule 308 (155 Ill. 2d R. 308):

"Should section 607 of the Illinois Marriage andDissolution of Marriage Act (750 ILCS 5/607) beinterpreted to permit the court to conduct a hearing anddetermine whether it is in the best interest of a child tovisit with grandparents who seek such visitation fromtheir own child? If so, is such a statute constitutional?"

The appellate court denied the parents' application for leave toappeal.

The parents filed separate petitions for leave to appeal in thiscourt. See 177 Ill. 2d R. 315. This court granted the petitions forleave to appeal and consolidated the cases. We subsequentlypermitted the Attorney General of the State of Illinois to interveneto defend the constitutionality of section 607(b)(1). See 134 Ill. 2dR. 19.

STATUTE

Section 607(b)(1) of the Illinois Marriage and Dissolution ofMarriage Act provides:

"(b)(1) The court may grant reasonable visitationprivileges to a grandparent, great-grandparent, or siblingof any minor child upon petition to the court by thegrandparents or great-grandparents or on behalf of thesibling, with notice to the parties required to be notifiedunder Section 601 of this Act, if the court determines thatit is in the best interests and welfare of the child, and mayissue any necessary orders to enforce such visitationprivileges. Except as provided in paragraph (2) of thissubsection (b), a petition for visitation privileges may befiled under this paragraph (1) whether or not a petitionpursuant to this Act has been previously filed or iscurrently pending if one or more of the followingcircumstances exist:

(A) the parents are not currently cohabiting on apermanent or an indefinite basis;

(B) one of the parents has been absent from themarital abode for more than one month without thespouse knowing his or her whereabouts;

(C) one of the parents is deceased;

(D) one of the parents joins in the petition with thegrandparents, great-grandparents, or sibling; or

(E) a sibling is in State custody." 750 ILCS5/607(b)(1) (West 1998).

ANALYSIS

I. Troxel v. Granville

Recently, the United States Supreme Court, in Troxel v.Granville, 530 U.S. ___, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000)(plurality opinion), addressed the constitutionality of the State ofWashington's nonparental visitation statute. The Washingtonstatute provides: " 'Any person may petition the court forvisitation rights at any time including, but not limited to, custodyproceedings. The court may order visitation rights for any personwhen visitation may serve the best interest of the child whether ornot there has been any change of circumstances.' " Troxel, 530U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2057-58, quotingWash. Rev. Code