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Langman v. Langman, 325 = Ill.App.3d 101,=20 757 N.E.2d 505, 258 Ill.Dec. 816 (Ill.App. 07/06/2001)

[1]	Illinois Appellate Court
[2]	No. 3-00-0684
[3]	325 Ill.App.3d 101, 757 N.E.2d 505, 258 Ill.Dec. 816, = 2001.IL.0000577=20 = <http://www.versuslaw.com>
[5]	BRENT LANGMAN AND RITA LANGMAN, = PETITIONERS-APPELLEES, v. AMY=20 LANGMAN, = RESPONDENT-APPELLANT.
[6]	Appeal from the Circuit Court of the 21st Judicial Circuit = Kankakee=20 County, Illinois. No. 99-F-67. Honorable Susan Sumner Tungate, = Judge=20 Presiding.
[7]	For Amy Langman, Appellant: Mr. Richard W. Zuckerman, Law Office = of=20 Richard W. Zuckerman, Peoria, Il. For Brent Langman, Rita Langman, = Appellees: Ms. Adrienne W. Albrecht, Sacks, Albrecht & = Gubbins,=20 Kankakee, Il.
[8]	Honorable Peg Breslin, Justice, Honorable Mary W. McDADE, = Justice,=20 Honorable Kent Slater, = Justice.
[9]	The opinion of the court was delivered by: Kent = Slater.
[10]	Assigned March 13, 2001
[11]	Submitted April 18, 2001
[12]	Reversed.
[13]	JUSTICE SLATER delivered the opinion of the court. BRESLIN and = McDADE,=20 J.J., concur.
[14]	The respondent, Amy Langman, appeals from the judgment of the = circuit=20 court of Kankakee County granting the petitioners, Brent and Rita = Langman,=20 visitation rights to their grandchildren. On appeal, Rita argues: = (1)=20 section 607(b)(1) of the Illinois Marriage and Dissolution of = Marriage Act=20 (Act) is unconstitutional as applied in this case ( 750 ILCS = 5/607(b)(1)=20 (West 1998)); (2) section 607(b)(1) of the Act is unconstitutional = on its=20 face ( 750 ILCS 5/607(b)(1) (West 1998)); and (3) the trial = court's=20 visitation schedule was against the manifest weight of the = evidence. We=20 hold that section 607(b)(1) of the Act is unconstitutional as = applied in=20 this case and reverse the trial court's = judgment.
[15]	The record reflects that Amy and Rhett Langman were married and = had=20 two children, T.L., born September 3, 1995, and P.L., born June = 25, 1998.=20 Rhett died in an accident on September 20, 1998. After Rhett's = death, Amy=20 had disagreements with Rita and Brent, Rhett's parents, regarding = the=20 amount of time they would be allowed to spend with her children. = Amy=20 wanted only supervised visitation. Rita and Brent wanted = unsupervised=20 visitation.
[16]	On May 21, 1999, Rita and Brent filed a petition to set = grandparent=20 visitation. At the hearing on the petition, Elizabeth Langman = testified=20 that she was the children's great-grandmother and had resided with = Brent=20 and Rita for the last two years. According to Elizabeth, before = Rhett's=20 death, he would bring T.L. over to the house once a week for = visits. She=20 said that Rita and Brent had a loving relationship with T.L. She = had=20 observed T.L. shower with his grandfather on more than one = occasion, but=20 she did not find that to be improper.
[17]	Amy testified as an adverse witness. She said that she and the=20 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=20 to take T.L. over to Rita and Brent's once a week. T.L. used to = spend 10=20 hours a week at Rita, and Brent's home until Amy learned that = Brent was=20 showering naked with T.L.
[18]	Brent testified that before Rhett died, he would see his = grandchildren=20 about every two weeks. He had a good relationship with Rhett and = they were=20 in business together. He and Rita would vacation with Rhett, Amy, = and the=20 children at least once a year. After Rhett died, they would see = the=20 children on Tuesday nights while Amy bowled. He had not heard from = the=20 children or seen them since the previous Halloween. Brent said = that he and=20 Rita only wanted their own time with their grandchildren, but = Brent=20 admitted that he wanted Amy to bring the children to his home and = leave=20 them there without Amy being present.
[19]	Rita Langman testified that T.L. had just turned three and P.L. = was=20 three months old when her son died. Before Rhett died, she saw = T.L. two to=20 three times a month; she and Brent babysat for T.L. and P.L. She = had a=20 very close relationship with T.L. They used to all vacation = together.=20 After Rhett died, their relationship with Amy became strained. She = asked=20 Amy once if there was a problem, and Amy told her that she and = Brent would=20 not do what she asked them to do when they babysat. Amy asked her = to=20 telephone her ahead of time if she wanted to visit the children. = Rita said=20 she then began to call first, but that she seldom got a phone call = back.=20 She wanted to see her grandchildren more often.
[20]	On cross-examination, Rita said that Amy was doing a good job = raising=20 the children. She knew that Amy criticized her because of the = "shower=20 incident." Rita said that they had two bathtubs in their house, = but T.L.=20 wanted to shower, so Brent showered with him. This upset=20 Amy.
[21]	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=20 month. When he visits, he stays overnight with his friend, Ray = Bonovini.=20 Brent and Ray had been in the home when T.L. and P.L. visited, but = they=20 never stayed overnight on the same night. When questioned about = showering=20 with T.L., Brent admitted that he had showered with T.L. about six = times.=20 He said that Rhett let T.L. shower with him and that Amy never=20 objected.
[22]	Amy testified on her own behalf that she had good reasons for = not=20 wanting the children to go to Rita and Brent's house unsupervised. = She=20 said that she told Rita that she did not want T.L. showering with = Brent,=20 but that it continued to happen. She was concerned that her = brother-in-law=20 was a homosexual. She said that Rita and Brent engage in "family = feuds"=20 with other family members and do not talk for months to those = relatives.=20 Amy did not want her children to be part of that=20 environment.
[23]	Upon questioning by the court, Amy testified that she had moved = to=20 Missouri because she and her children needed a fresh start and a = place=20 they could be happy. She wanted any visitation to be supervised by = her and=20 at her home. She did not want overnight visits, but noted that = Rita and=20 Brent had family in St. Louis.
[24]	After hearing all the evidence, the trial court issued its order = with=20 an accompanying memorandum. In its memorandum, the court noted = that all=20 the parties were responsible, moral and caring people. The court=20 acknowledged that Amy did not object to visitation, but had = requested=20 supervised visitation. The trial judge noted that it could not do = more=20 than balance the rights of the parent and grandparents. In = reviewing the=20 facts, the court said that it did not believe Amy's concerns were=20 justified regarding Brent showering with T.L. or associating with = his=20 homosexual uncle. It then set up a visitation schedule which would = eventually allow Rita and Brent unsupervised visitation for one = full=20 weekend each month.
[25]	On appeal, Amy first argues that section 607(b)(1) of the = Illinois=20 Marriage and Dissolution of Marriage Act (Act) is unconstitutional = as=20 applied in this case. 750 ILCS 5/607(b)(1) (West 1998). The Act = provides=20 in part:
[26]	"(b)(1) The court may grant reasonable visitation privileges to = a=20 grandparent, great-grandparent, or sibling of any minor child upon = petition to the court by the grandparents or great-grandparents or = on=20 behalf of the sibling, with notice to the parties required to be = notified=20 under Section 601 of this Act, if the court determines that it is = in the=20 best interests and welfare of the child, and may issue any = necessary=20 orders to enforce such visitation privileges. Except as provided = in=20 paragraph (2) of this subsection (b), a petition for visitation = privileges=20 may be filed under this paragraph (1) whether or not a petition = pursuant=20 to this Act has been previously filed or is currently pending if = one or=20 more of the following circumstances exist:
[27]	(A) the parents are not currently cohabitating on a permanent or = an=20 indefinite basis;
[28]	(B) one of the parents has been absent from the marital abode = for more=20 than once month without the spouse knowing his or her=20 whereabouts;
[29]	(C) one of the parents is deceased;
[30]	(D) one of the parents joins in the petition with the = grandparents,=20 great-grandparents, or sibling; or
[31]	(E) a sibling is in State custody." 750 ILCS 5/607(b)(1) (West=20 1998).
[32]	Parents have a fundamental constitutional right to make = decisions=20 concerning the care, custody, and control of their children. = Troxel v.=20 Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). = By=20 allowing the state to override the decisions of parents regarding = the=20 upbringing of their children section 607(b)(1) of the Act = significantly=20 interferes with the fundamental rights of parents. Lulay v. Lulay, = 193=20 Ill. 2d 455, 739 N.E.2d 521, 250 Ill. Dec. 758 (2000). Therefore, = the=20 constitutionality of section 607(b)(1) of the Act must be = evaluated under=20 a strict scrutiny analysis. Lulay, 193 Ill. 2d at 476, 739 N.E.2d = at 532.=20 To withstand the strict scrutiny test, a statute must serve a = compelling=20 state interest, and the statute must be narrowly tailored to serve = the=20 compelling interest. Lulay, 193 Ill. 2d at 476, 739 N.E.2d at 532. = Both=20 the United States Supreme Court and our supreme court have = analyzed=20 various of the following factors to determine whether a = grandparent=20 visitation statute is unconstitutional as applied to the facts of = a=20 particular case: (1) who may bring the action; (2) whether the=20 grandparents alleged, or the trial court found, that the parent = was unfit;=20 (3) whether the grandparents alleged that the parent sought to = terminate=20 visitation entirely; and (4) whether the trial court gave any = special=20 weight to the parent's determination of the children's best = interests. See=20 Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. = 2054=20 (2000); Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521, 250 Ill. = Dec. 758=20 (2000).
[33]	We initially note that Brent and Rita argue that Amy has waived = the=20 issue of the constitutionality of section 607(b)(1) of the Act = because she=20 did not raise it before the trial court. 750 ILCS 5/606 (b)(1) = (West=20 1998). However, waiver is a limitation on the parties and not on = the=20 courts. A reviewing court may ignore the waiver rule in order to = achieve a=20 just result. In re Janet S., 305 Ill. App. 3d 318, 712 N.E.2d 422, = 238=20 Ill. Dec. 700 (1999). Although Amy did not raise the = constitutionality of=20 the statute below, the trial court did raise it and ruled on it.=20 Therefore, in the interest of justice, we will review this=20 issue.
[34]	Section 607(b)(1) is more narrow than the statute in Troxel v.=20 Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000). = In that=20 case, the United States Supreme Court reviewed a Washington = statute which=20 permitted any party to petition the court for visitation rights of = minor=20 children and for the court to award such rights if it found them = to be in=20 the best interest of the children. Troxel, 530 U.S. at 57, 147 L. = Ed. 2d=20 at 49, 120 S. Ct. at 2054. In our case, section 607(b)(1) of the = Act only=20 authorizes grandparents, great-grandparents, or siblings to = petition the=20 court for such rights. 750 ILCS 5/607(b)(1) (West 1998). = Therefore, the=20 first factor is not problematic and the statute is not over=20 broad.
[35]	However, we find that the remaining three factors make section=20 607(b)(1) unconstitutional as applied in this case. First, neither = the=20 grandparents nor the trial court alleged that Amy was an unfit = parent. To=20 the contrary, Rita believed that Amy was a good mother, and the = trial=20 court described all of the parties as responsible, moral and = caring=20 people. As our supreme court has recently noted, this issue is = pivotal=20 because a court must presume that a fit parent acts in the best = interests=20 of her children. Lulay, 193 Ill. 2d at 462, 739 N.E.2d at 525, = citing=20 Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. = 2054=20 (2000).
[36]	Next, Rita and Brent did not allege that Amy sought to terminate = their=20 visitation with T.L. and P.L. entirely. Amy simply sought to limit = their=20 visitation to supervised visits in her home.
[37]	Finally, the trial court did not give any special weight to = Amy's=20 determination of the her children's best interests. It is clear = from the=20 court's memorandum order that it disagreed with Amy's decisions = about T.L.=20 showering with Brent or associating with a homosexual uncle. The = court=20 stated:
[38]	"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=20 also apparently objects to the children being with their uncle who = is a=20 homosexual. No evidence was produced that the uncle ever placed = either=20 child in any danger, merely that he was a homosexual and had a = partner. As=20 to the showers with grandfather, no evidence was presented that = these acts=20 frightened, upset or endangered the child, = [T.L.]."
[39]	Again, even if the court disagreed with Amy on these issues, it = is=20 Amy's fundamental right as a parent to determine with whom her = children=20 may bathe and also with whom they may associate. See Troxel v. = Granville,=20 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (parents = have a=20 fundamental constitutional right to make decisions concerning the = care,=20 custody, and control of their children). The trial court did not = give any=20 special weight to Amy's determination, and specifically noted that = its=20 task was to balance the right of the parent and the grandparents = in this=20 case.
[40]	For these reasons, we hold that the facts in this case do not = warrant=20 the state's interference with a parent's decision regarding who = may have=20 visitation with her children. Section 607(b)(1) of the Act, as = interpreted=20 and applied to this case, does not serve a compelling state = interest and,=20 therefore, does not satisfy the strict scrutiny test. Accordingly, = section=20 607(b)(1) of the Act, as applied to this case, is an = unconstitutional=20 infringement on Amy's fundamental liberty interest in raising her=20 children.
[41]	Next, Amy argues that section 607(b)(1) of the Act is facially=20 unconstitutional. 750 ILCS 5/607(b)(1) (West 1998). Because we = hold that=20 section 607(b)(1) of the Act as applied to this case is = unconstitutional,=20 we need not address this argument. See Lulay v. Lulay, 193 Ill. 2d = at 480,=20 739 N.E.2d at 534. Our holding is also dispositive of her third = issue,=20 that the trial court's visitation schedule was against the = manifest weight=20 of the evidence.
[42]	Brent and Rita argue that even if section 607(b)(1) of the Act = is=20 unconstitutional, the visitation order is authorized under = Illinois common=20 law. To support their contention, they cite to the factually = analogous=20 case of Boyles v. Boyles, 14 Ill. App. 3d 602, 302 N.E.2d 199=20 (1973).
[43]	Prior to the legislature's enactment of section 607(b)(1), = Illinois=20 common law provided visitation rights to grandparents if there was = a=20 showing of "special circumstances." Chodzko v. Chodzko, 66 Ill. 2d = 28, 360=20 N.E.2d 60, 4 Ill. Dec. 313 (1976). Rita and Brent have cited no = authority=20 for the proposition that grandparents whose child has died and who = have=20 been granted limited visitation rights to their grandchildren by = the=20 surviving parent may be awarded additional visitation rights as a = "special=20 circumstance." Boyles v. Boyles, (14 Ill. App. 3d 602, 302 N.E.2d = 199=20 (1973)), is contrary to current law. In Boyles, the court held, = "We=20 believe where a parent has died, the continuation of the = relationship=20 between a child and grandparents, which may be promoted by = visitation, may=20 be a positive benefit affecting the best interest of the child." = Boyles,=20 14 Ill. App. 3d at 604, 302 N.E.2d at 201. This standard conflicts = with=20 the law stated by the United States Supreme Court as well as our = supreme=20 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.=20 Ct. at 2061, 147 L. Ed. 2d at 58; Lulay v. Lulay, 193 Ill. 2d at = 461, 739=20 N.E.2d at 525. Therefore, we will not authorize this visitation = order=20 under common law.
[44]	The judgment of the circuit court of Kankakee County is=20 reversed.
[45]	Reversed.
[46]	BRESLIN and McDADE, J.J., = concur.

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