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Docket No. 92517-Agenda 28-November 2001.

CLIFFORD SCHWEIGERT et al., Appellants, v. VALENA K. SCHWEIGERT, Appellee.

Opinion filed June 6, 2002.

JUSTICE GARMAN delivered the opinion of the court:

Clifford and Roberta Schweigert filed a petition in the circuitcourt of Tazewell County seeking visitation with theirgranddaughter, Laisa, pursuant to section 607(b) of the IllinoisMarriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(West 2000)). Laisa is the daughter of the Schweigerts' late son,Brad, and his wife, Valena. Valena filed an answer in which sheacknowledged that she had terminated Laisa's visits with hergrandparents and stated her reasons for doing so. Because thequestion that we address, below, is purely a question of law, it isnot necessary to recount the factual allegations made by theparties.

The circuit court, on its own motion, ordered the parties to filememoranda addressing whether, in light of Troxel v. Granville,530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), and thesubsequent decision of this court in Lulay v. Lulay, 193 Ill. 2d 455(2000), section 607(b) was unconstitutional as applied when therespondent is the child's sole surviving parent. After a hearing onthis issue, the circuit court found the statute "unconstitutional asapplied to the facts and circumstances of this case." In effect, thecourt ruled that one parent's "well-established fundamental right"to raise her child without interference from the state is notdiminished by the death of the other parent.

Pursuant to Supreme Court Rule 302(a)(1) (134 Ill. 2d R.302(a)(1)), appeal lies directly to this court because the circuitcourt declared an Illinois statute invalid.

Section 607(b) of the Act provides, in pertinent part:

"(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 *** if the court determines that it is in the bestinterests and welfare of the child ***. *** [A] petition forvisitation privileges may be filed under this paragraph ***if one or more of the following circumstances exist:

(A) the parents are not currently cohabiting on apermanent basis 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.

* * *

(3) When one parent is deceased, the surviving parentshall not interfere with the visitation rights of thegrandparents."

The specific issue presented by this case is whether sections607(b)(1)(C) and 607(b)(3), as applied to a surviving parent, areunconstitutional because they violate the parent's fundamentalconstitutional right, under the due process clauses of the fourteenthamendment to the United States Constitution (U.S. Const., amend.XIV) and article I, section 2, of the Illinois Constitution (Ill. Const.1970, art. I,