No. 3--00--0684

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

BRENT LANGMAN and			)  Appeal from the Circuit Court

RITA LANGMAN				)  of the 21st Judicial Circuit

						)  Kankakee County, Illinois,

	Petitioners-Appellees,	)

						)	

	v.					)  No. 99--F--67

						)	

AMY LANGMAN,				)  Honorable 

						)  Susan Sumner Tungate

	Respondent-Appellant.	)  Judge Presiding

_________________________________________________________________

	JUSTICE SLATER delivered the opinion of the court:

	_________________________________________________________________

	The respondent, Amy Langman, appeals from the judgment of

the circuit court of Kankakee County granting the petitioners,

Brent and Rita Langman, visitation rights to their grandchildren.

On appeal, Rita argues: (1) section 607(b)(1) of the Illinois

Marriage and Dissolution of Marriage Act (Act) is

unconstitutional as applied in this case (750 ILCS 5/607(b)(1)

(West 1998)); (2) section 607(b)(1) of the Act is

unconstitutional on its face (750 ILCS 5/607(b)(1) (West 1998)); and (3) the trial court's visitation schedule was against the

manifest weight of the evidence.  We hold that section 607(b)(1)

of the Act is unconstitutional as applied in this case and

reverse the trial court's judgment. 	

	The record reflects that Amy and Rhett Langman were married

and had two children, T.L., born September 3, 1995, and P.L., born June 25, 1998.  Rhett died in an accident on September 20,

1998.  After Rhett's death, Amy had disagreements with Rita and

Brent, Rhett's parents, regarding the amount of time they would

be allowed to spend with her children.  Amy wanted only

supervised visitation.  Rita and Brent wanted unsupervised

visitation.

	On May 21, 1999, Rita and Brent filed a petition to set

grandparent visitation.  At the hearing on the petition,

Elizabeth Langman testified that she was the children's great-

grandmother and had resided with Brent and Rita for the last two

years.  According to Elizabeth, before Rhett's death, he would

bring T.L. over to the house once a week for visits.  She said

that Rita and Brent had a loving relationship with T.L.  She had

observed T.L. shower with his grandfather on more than one

occasion, but she did not find that to be improper.

	Amy testified as an adverse witness.  She said that she and

the children had moved six hours away from Rita and Brent to

Columbia, Missouri, for a fresh start.  She said that when Rhett

was alive, he used to take T.L. over to Rita and Brent's once a

week.  T.L. used to spend 10 hours a week at Rita and Brent's

home until Amy learned that Brent was showering naked with T.L.  

	Brent testified that before Rhett died, he would see his

grandchildren about every two weeks.  He had a good relationship

with Rhett and they were in business together.  He and Rita would

vacation with Rhett, Amy, and the children at least once a year. 

After Rhett died, they would see the children on Tuesday nights while Amy bowled.  He had not heard from the children or seen

them since the previous Halloween.  Brent said that he and Rita

only wanted their own time with their grandchildren, but Brent

admitted that he wanted Amy to bring the children to his home and

leave them there without Amy being present. 

	Rita Langman testified that T.L. had just turned three and

P.L. was three months old when her son died.  Before Rhett died,

she saw T.L. two to three times a month; she and Brent babysat

for T.L. and P.L.  She had a very close relationship with T.L. 

They used to all vacation together.  After Rhett died, their

relationship with Amy became strained.  She asked Amy once if

there was a problem, and Amy told her that she and Brent would

not do what she asked them to do when they babysat.  Amy asked

her to telephone her ahead of time if she wanted to visit the

children.  Rita said she then began to call first, but that she

seldom got a phone call back.  She wanted to see her

grandchildren more often.

	On cross-examination, Rita said that Amy was doing a good

job raising the children.  She knew that Amy criticized her

because of the "shower incident."  Rita said that they had two

bathtubs in their house, but T.L. wanted to shower, so Brent

showered with him.  This upset Amy.  

	Brent was recalled as a witness. He testified that he raised

two children, Brent and Rhett.  His son Brent visits the house

once or twice a month.  When he visits, he stays overnight with

his friend, Ray Bonovini.  Brent and Ray had been in the home when T.L. and P.L. visited, but they never stayed overnight on

the same night.  When questioned about showering with T.L., Brent

admitted that he had showered with T.L. about six times.  He said

that Rhett let T.L. shower with him and that Amy never objected. 

	Amy testified on her own behalf that she had good reasons

for not wanting the children to go to Rita and Brent's house

unsupervised.  She said that she told Rita that she did not want

T.L. showering with Brent, but that it continued to happen.  She

was concerned that her brother-in-law was a homosexual.  She said

that Rita and Brent engage in "family feuds" with other family

members and do not talk for months to those relatives.  Amy did

not want her children to be part of that environment.

	Upon questioning by the court, Amy testified that she had

moved to Missouri because she and her children needed a fresh

start and a place they could be happy.  She wanted any visitation

to be supervised by her and at her home.  She did not want

overnight visits, but noted that Rita and Brent had family in St.

Louis.

	After hearing all the evidence, the trial court issued its

order with an accompanying memorandum.  In its memorandum, the

court noted that all the parties were responsible, moral and

caring people.  The court acknowledged that Amy did not object to

visitation, but had requested supervised visitation.  The trial

judge noted that it could not do more than balance the rights of

the parent and grandparents.  In reviewing the facts, the court

said that it did not believe Amy's concerns were justified regarding Brent showering with T.L. or associating with his

homosexual uncle.  It then set up a visitation schedule which

would eventually allow Rita and Brent unsupervised visitation for

one full weekend each month. 

	On appeal, Amy first argues that section 607(b)(1) of the

Illinois Marriage and Dissolution of Marriage Act (Act) is

unconstitutional as applied in this case.  750 ILCS 5/607(b)(1)

(West 1998). The Act provides in part:

		"(b)(1) The court may grant reasonable

visitation privileges to a grandparent,

great-grandparent, or sibling of any minor

child upon petition to the court by the

grandparents or great-grandparents or on

behalf of the sibling, with notice to the

parties required to be notified under Section

601 of this Act, if the court determines that

it is in the best interests and welfare of

the child, and may issue any necessary orders

to enforce such visitation privileges. 

Except as provided in paragraph (2) of this

subsection (b), a petition for visitation

privileges may be filed under this paragraph

(1) whether or not a petition pursuant to

this Act has been previously filed or is

currently pending if one or more of the

following circumstances exist:

			(A) the parents are not currently

cohabitating on a permanent or an

indefinite basis;                        

(B) one of the parents has been absent

from the marital abode for more than

once month without the spouse knowing

his or her whereabouts;                  

(C) one of the parents is deceased;      

(D) one of the parents joins in the

petition with the grandparents, great-

grandparents, or sibling; or             

(E) a sibling is in State custody."      

750 ILCS 5/607(b)(1) (West 1998).        

	Parents have a fundamental constitutional right to make

decisions concerning the care, custody, and control of their

children.  Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000).  By allowing the state to override the

decisions of parents regarding the upbringing of their children,

section 607(b)(1) of the Act significantly interferes with the

fundamental rights of parents.  Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000).  Therefore, the constitutionality of

section 607(b)(1) of the Act must be evaluated under a strict

scrutiny analysis.  Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532.  To withstand the strict scrutiny test, a statute must serve a

compelling state interest, and the statute must be narrowly

tailored to serve the compelling interest.  Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532.  Both the United States Supreme Court and

our supreme court have analyzed various of the following factors

to determine whether a grandparent visitation statute is

unconstitutional as applied to the facts of a particular case:

(1) who may bring the action; (2) whether the grandparents

alleged, or the trial court found, that the parent was unfit; (3)

whether the grandparents alleged that the parent sought to

terminate visitation entirely; and (4) whether the trial court

gave any special weight to the parent's determination of the

children's best interests.  See Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000); Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521 (2000).    

	We initially note that Brent and Rita argue that Amy has

waived the issue of the constitutionality of section 607(b)(1) of

the Act because she did not raise it before the trial court.  750

ILCS 5/606 (b)(1) (West 1998).  However, waiver is a limitation

on the parties and not on the courts.  A reviewing court may

ignore the waiver rule in order to achieve a just result.  In re Janet S., 305 Ill. App. 3d 318, 712 N.E.2d 422 (1999).  Although Amy did not raise the constitutionality of the statute below, the

trial court did raise it and ruled on it.  Therefore, in the

interest of justice, we will review this issue.

	Section 607(b)(1) is more narrow than the statute in Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000).  In that case, the United States Supreme Court reviewed a

Washington statute which permitted any party to petition the court for visitation rights of minor children and for the court

to award such rights if it found them to be in the best interest

of the children.  Troxel, 530 U.S. at 57, 147 L.Ed.2d at 49, 120 S. Ct. at 2054.  In our case, section 607(b)(1) of the Act only

authorizes grandparents, great-grandparents, or siblings to

petition the court for such rights.  750 ILCS 5/607(b)(1) (West

1998).  Therefore, the first factor is not problematic and the

statute is not over broad.

	However, we find that the remaining three factors make

section 607(b)(1) unconstitutional as applied in this case. 

First, neither the grandparents nor the trial court alleged that

Amy was an unfit parent.  To the contrary, Rita believed that Amy

was a good mother, and the trial court described all of the

parties as responsible, moral and caring people.  As our supreme

court has recently noted, this issue is pivotal because a court

must presume that a fit parent acts in the best interests of her

children.  Lulay, 193 Ill. 2d at 462, 739 N.E.2d at 525, citing Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000).  

	Next, Rita and Brent did not allege that Amy sought to

terminate their visitation with T.L. and P.L. entirely.  Amy

simply sought to limit their visitation to supervised visits in

her home.

	Finally, the trial court did not give any special weight to

Amy's determination of the her children's best interests.  It is

clear from the court's memorandum order that it disagreed with Amy's decisions about T.L. showering with Brent or associating

with a homosexual uncle.  The court stated: 

		"She objected to her young son, then little

more than a toddler, showering with his

grandfather in a large open shower on the

farm.  She also apparently objects to the

children being with their uncle who is a

homosexual.  No evidence was produced that

the uncle ever placed either child in any

danger, merely that he was a homosexual and

had a partner.  As to the showers with

grandfather, no evidence was presented that

these acts frightened, upset or endangered

the child, [T.L.]."

Again, even if the court disagreed with Amy on these issues, it

is Amy's fundamental right as a parent to determine with whom her

children may bathe and also with whom they may associate.  See

Troxel v. Granville, 530 U.S. 57, 147 L.Ed.2d 49, 120 S.Ct. 2054 (2000) (parents have a fundamental constitutional right to make

decisions concerning the care, custody, and control of their

children).  The trial court did not give any special weight to

Amy's determination, and specifically noted that its task was to

balance the right of the parent and the grandparents in this

case.

	For these reasons, we hold that the facts in this case do not warrant the state's interference with a parent's decision regarding who may have visitation with her children.  Section

607(b)(1) of the Act, as interpreted and applied to this case,

does not serve a compelling state interest and, therefore, does

not satisfy the strict scrutiny test.  Accordingly, section

607(b)(1) of the Act, as applied to this case, is an

unconstitutional infringement on Amy's fundamental liberty

interest in raising her children.  

	Next, Amy argues that section 607(b)(1) of the Act is

facially unconstitutional.  750 ILCS 5/607(b)(1) (West 1998). 

Because we hold that section 607(b)(1) of the Act as applied to

this case is unconstitutional, we need not address this argument. 

See Lulay v. Lulay, 193 Ill. 2d at 480, 739 N.E.2d at 534.  Our holding is also dispositive of her third issue, that the trial

court's visitation schedule was against the manifest weight of

the evidence. 	

	Brent and Rita argue that even if section 607(b)(1) of the

Act is unconstitutional, the visitation order is authorized under

Illinois common law.  To support their contention, they cite to

the factually analogous case of Boyles v. Boyles, 14 Ill. App. 3d 602, 302 N.E.2d 199 (1973). 

	Prior to the legislature's enactment of section 607(b)(1),

Illinois common law provided visitation rights to grandparents if

there was a showing of "special circumstances."  Chodzko v. Chodzko, 66 Ill. 2d 28, 360 N.E.2d 60 (1976).  Rita and Brent have cited no authority for the proposition that grandparents

whose child has died and who have been granted limited visitation rights to their grandchildren by the surviving parent may be

awarded additional visitation rights as a "special circumstance." 

Boyles v. Boyles, (14 Ill. App. 3d 602, 302 N.E.2d 199 (1973)), is contrary to current law.  In Boyles, the court held, "We believe where a parent has died, the continuation of the

relationship between a child and grandparents, which may be

promoted by visitation, may be a positive benefit affecting the

best interest of the child."  Boyles, 14 Ill. App. 3d at 604, 302 N.E.2d at 201.  This standard conflicts with the law stated by

the United States Supreme Court as well as our supreme court that

a court must presume that a fit parent acts in the best interest

of her children.  See Troxel v. Granville, 530 U.S. at 68, 120 S.Ct. at 2061, 147 L.Ed.2d at 58; Lulay v. Lulay, 193 Ill. 2d at 461, 639 N.E.2d at 525.  Therefore, we will not authorize this

visitation order under common law.

	The judgment of the circuit court of Kankakee County is

reversed.

	Reversed.   	

	BRESLIN and McDADE, J.J., concur.