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Lulay v. Lylay, 193 Ill.2d 455, = 193 Ill.2d=20 455, 739 N.E.2d 521, 739 N.E.2d 521, 250 Ill.Dec. 758, 250 Ill.Dec. 758 = (Ill.=20 10/26/2000)

[1]	Illinois Supreme Court
[2]	Docket Nos. 87874, 87896 = cons.
[3]	193 Ill.2d 455, 193 Ill.2d 455, 739 N.E.2d 521, 739 N.E.2d 521, = 250=20 Ill.Dec. 758, 250 Ill.Dec. 758, 2000.IL.0042883=20 = <http://www.versuslaw.com>
[5]	GAIL LULAY, APPELLEE, V. MICHAEL LULAY ET=20 AL., APPELLANTS.
[6]	The opinion of the court was delivered by: Justice=20 Bilandic
[7]	Docket Nos. 87874, 87896 cons.-Agenda 13-March = 2000.
[8]	Michael Lulay and Kiley Lulay were divorced on March 11, 1996.=20 Pursuant to the judgment for dissolution of marriage, Michael and = Kiley=20 have joint custody over their three minor children. On November = 30, 1998,=20 Gail Lulay, Michael's mother, filed a petition in the circuit = court of Du=20 Page County under section 607(b)(1) of the Illinois Marriage and=20 Dissolution of Marriage Act (750 ILCS 5/607(b)(1) (West 1998)), = seeking=20 visitation with her three grandchildren.
[9]	Michael and Kiley filed a motion to dismiss the petition for=20 visitation. See 735 ILCS 5/2-615 (West 1998). The parents argued = that=20 section 607(b)(1) should not be interpreted to permit a = grandparent to sue=20 his or her own child for visitation with grandchildren; and that = if the=20 statute is construed in this manner, the statute is an = unconstitutional=20 infringement on their fundamental liberty interest, as parents, in = raising=20 their children. The circuit court denied the parents' motion to = dismiss.=20 On the parents' request, however, the circuit court certified the=20 following question of law for interlocutory appeal pursuant to = Supreme=20 Court Rule 308 (155 Ill. 2d R. 308):
[10]	"Should section 607 of the Illinois Marriage and Dissolution of=20 Marriage Act (750 ILCS 5/607) be interpreted to permit the court = to=20 conduct a hearing and determine whether it is in the best interest = of a=20 child to visit with grandparents who seek such visitation from = their own=20 child? If so, is such a statute constitutional?"
[11]	The appellate court denied the parents' application for leave to = appeal.
[12]	The parents filed separate petitions for leave to appeal in this = court. See 177 Ill. 2d R. 315. This court granted the petitions = for leave=20 to appeal and consolidated the cases. We subsequently permitted = the=20 Attorney General of the State of Illinois to intervene to defend = the=20 constitutionality of section 607(b)(1). See 134 Ill. 2d R.=20 19.
[13]	STATUTE
[14]	Section 607(b)(1) of the Illinois Marriage and Dissolution of = Marriage=20 Act provides:
[15]	"(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:
[16]	(A) the parents are not currently cohabiting on a permanent or = an=20 indefinite basis;
[17]	(B) one of the parents has been absent from the marital abode = for more=20 than one month without the spouse knowing his or her=20 whereabouts;
[18]	(C) one of the parents is deceased;
[19]	(D) one of the parents joins in the petition with the = grandparents,=20 great-grandparents, or sibling; or
[20]	(E) a sibling is in State custody." 750 ILCS 5/607(b)(1) (West=20 1998).
[21]	ANALYSIS
[22]	I. Troxel v. Granville
[23]	Recently, the United States Supreme Court, in Troxel v. = Granville, 530=20 U.S. ___, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality = opinion),=20 addressed the constitutionality of the State of Washington's = nonparental=20 visitation statute. The Washington statute provides: " `Any person = may=20 petition the court for visitation rights at any time including, = but not=20 limited to, custody proceedings. The court may order visitation = rights for=20 any person when visitation may serve the best interest of the = child=20 whether or not there has been any change of circumstances.' " = Troxel, 530=20 U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2057-58, quoting = Wash.=20 Rev. Code =C2=A726.10.160(3) (1994) (section = 26.10.160(3)).
[24]	In Troxel, the parents, who were never married, had two = children. The=20 father regularly brought the children to visit with his parents. = The=20 father, however, committed suicide, and, eventually, the mother = informed=20 the paternal grandparents that she wished to limit their = visitation with=20 the children to one visit per month. Troxel, 530 U.S. at ___, 147 = L. Ed.=20 2d at 53, 120 S. Ct. at 2057. The grandparents in Troxel = petitioned for=20 visitation under section 26.10.160(3). The trial court found that = more=20 extensive visitation with the grandparents was in the children's = best=20 interests and therefore ordered the visitation. Troxel, 530 U.S. = at ___,=20 147 L. Ed. 2d at 54, 120 S. Ct. at 2058.
[25]	The Washington Court of Appeals reversed the lower court's = visitation=20 order on the basis that nonparents lack standing to seek = visitation under=20 section 26.10.160(3) unless a custody action is pending. The = appellate=20 court reasoned that this limitation on nonparental visitation = actions was=20 consistent with the constitutional restrictions on state = interference with=20 parents' fundamental liberty interest in raising their children. = Troxel,=20 530 U.S. at ___, 147 L. Ed. 2d at 54, 120 S. Ct. at 2058, quoting = In re=20 Troxel, 87 Wash. App. 131, 135, 940 P.2d 698, 700 = (1997).
[26]	The Supreme Court of Washington disagreed with the appellate = court's=20 construction of the statute, holding that the plain language of = section=20 26.10.160(3) gives grandparents standing to seek visitation = regardless of=20 whether a custody action is pending. Troxel, 530 U.S. at ___, 147 = L. Ed.=20 2d at 55, 120 S. Ct. at 2058, citing In re Smith, 137 Wash. 2d 1, = 12, 969=20 P.2d 21, 26-27 (1998). The Washington Supreme Court held, however, = that=20 section 26.10.160(3) is an unconstitutional infringement on the=20 fundamental right of parents to rear their children. Specifically, = the=20 court found that the statute is too broad because it allows "any = person"=20 to petition for forced visitation with the child "at any time" = with the=20 only requirement being that the visitation serve the best interest = of the=20 child. Thus, the Washington Supreme Court held, the statute is = infirm=20 because it allows the state to interfere with the fundamental = right of=20 parents to rear their children without requiring a threshold = showing of=20 harm to the child as a result of the discontinued visitation. = Troxel, 530=20 U.S. at ___, 147 L. Ed. 2d at 55, 120 S. Ct. at 2058-59, citing In = re=20 Smith, 137 Wash. 2d at 15-21, 969 P.2d at 28-31.
[27]	The United States Supreme Court, in a plurality opinion, found = that=20 section 26.10.160(3), as applied to the facts of the case, is an=20 unconstitutional infringement on the mother's fundamental liberty = interest=20 in raising her children. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at = 57, 120=20 S. Ct. at 2060-61. The Court began its analysis with a discussion = of the=20 important role that grandparents play in the prevalent existence = of=20 single-parent households. The Court pointed out that the = nationwide=20 enactment of nonparental visitation statutes is certainly due to = the=20 states' recognition of the changing realities of the American = family.=20 Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 55-56, 120 S. Ct. at = 2059.=20 Indeed, all 50 states have statutes that provide for grandparent=20 visitation in some form. Troxel, 530 U.S. at ___ n., 147 L. Ed. = 2d at 61=20 n., 120 S. Ct. at 2064 n.* (citing nonparental visitation statute = from=20 each state). In enacting these statutes, states have "sought to = ensure the=20 welfare of the children therein by protecting the relationships = those=20 children form with such third parties. * The extension of = statutory=20 rights in this area to persons other than a child's parents, = however,=20 comes with an obvious cost. For example, the State's recognition = of an=20 independent third-party interest in a child can place a = substantial burden=20 on the traditional parent-child relationship. * [T]hese statutes = can=20 present questions of constitutional import." Troxel, 530 U.S. at = ___, 147=20 L. Ed. 2d at 56, 120 S. Ct. at 2059.
[28]	Turning to the Washington statute, the Court in Troxel focused = on its=20 broad scope. Section 26.10.160(3) allows "any person" to petition = for=20 visitation "at any time," and the court may grant such visitation = rights=20 whenever "visitation may serve the best interest of the child." = The=20 statute contains no requirement that a court must give deference = to the=20 parent's decision that visitation would not be in the child's best = interest. "Thus, in practical effect, in the State of Washington a = court=20 can disregard and overturn any decision by a fit custodial parent=20 concerning visitation whenever a third party affected by the = decision=20 files a visitation petition, based solely on the judge's = determination of=20 the child's best interests." (Emphasis in original.) Troxel, 530 = U.S. at=20 ___, 147 L. Ed. 2d at 57-58, 120 S. Ct. at 2061.
[29]	Next, looking at the facts of the case, the Court noted that the = grandparents did not allege, and no court has found, that the = mother was=20 an unfit parent. This point is pivotal because a court must = presume that=20 fit parents act in the best interests of their children. Troxel, = 530 U.S.=20 at ___, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061, citing Parham v. = J.R.,=20 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 = (1979). The=20 Court emphasized that the trial court in the case gave no special = weight=20 to the mother's determination of her children's best interests. In = fact, a=20 review of the trial court's findings showed that the trial court = presumed=20 that the grandparents' request for visitation should be granted = unless the=20 children would be adversely affected. Thus, the trial court = effectively=20 placed upon the mother the burden of disproving that visitation = would be=20 in the best interests of her children. Troxel, 530 U.S. at ___, = 147 L. Ed.=20 2d at 58-59, 120 S. Ct. at 2062. The Court also stressed that the=20 grandparents did not allege that the mother sought to cut off = visitation=20 entirely. Rather, the mother asked that the duration of the visits = between=20 her children and the grandparents be shorter than that requested = by the=20 grandparents. Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 60, 120 S. = Ct. at=20 2062-63.
[30]	As applied in the case before it, the Court in Troxel found that = section 26.10.160(3) is an unconstitutional infringement on the = mother's=20 fundamental right to make decisions concerning the care, custody, = and=20 control of her children. The Court stated that "the Due Process = Clause=20 does not permit a State to infringe on the fundamental right of = parents to=20 make childrearing decisions simply because a state judge believes = a=20 `better' decision could be made." Troxel, 530 U.S. at ___, 147 L. = Ed. 2d=20 at 61, 120 S. Ct. at 2064.
[31]	The Court concluded that, because it rested its decision on the=20 "sweeping breadth" of section 26.10.160(3) and the application of = the=20 statute to the facts in the case, it need not consider whether due = process=20 requires all nonparental visitation statutes to include a showing = of harm=20 or potential harm to the child as a prerequisite to granting = visitation.=20 Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 61, 120 S. Ct. at 2064. = The=20 Court continued: "We do not, and need not, define today the = precise scope=20 of the parental due process right in the visitation context. *** = Because=20 much state-court adjudication in this context occurs on a = case-by-case=20 basis, we would be hesitant to hold that specific nonparental = visitation=20 statutes violate the Due Process Clause as a per se matter." = Troxel, 530=20 U.S. at ___,147 L. Ed. 2d at 61, 120 S. Ct. at 2064. Rather, "the=20 constitutionality of any standard for awarding visitation turns on = the=20 specific manner in which that standard is applied," and "the=20 constitutional protections in this area are best `elaborated with = care.'=20 [Citation.]" Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 61, 120 S. = Ct. at=20 2064.
[32]	With Troxel in mind, we review the certified question presented = in=20 this case.
[33]	II. Statutory Construction
[34]	The first portion of the certified question asks: "Should = section 607=20 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS = 5/607)=20 be interpreted to permit the court to conduct a hearing and = determine=20 whether it is in the best interest of a child to visit with = grandparents=20 who seek such visitation from their own child?" The answer is=20 yes.
[35]	We first review the development of grandparent visitation in = Illinois.=20 Prior to the legislature's enactment of section 607(b)(1), = Illinois common=20 law provided no visitation rights to grandparents unless there was = a=20 showing of "special circumstances." In Chodzko v. Chodzko, 66 Ill. = 2d 28=20 (1976), for example, the circuit court of Cook County allowed a = maternal=20 grandfather to intervene in the divorce proceeding between his = daughter=20 and her husband and receive visitation privileges with his = grandchildren=20 over the objection of the mother. The supreme court reversed the = order=20 granting visitation on the basis that the grandfather's petition = contained=20 no allegations to support a conclusion that either parent was = unfit or had=20 forfeited the superior right to the custody and care of the = children.=20 Chodzko, 66 Ill. 2d at 34.
[36]	Moreover, the court in Chodzko stated:
[37]	"[N]o special circumstances have been established that would = warrant=20 granting special visitation rights to the grandfather. It is = commendable=20 that a bond of love and affection, as alleged, exists between the=20 grandfather and the minor children; however, this and the = allegation of=20 past favors do not justify carving out of the custody and = visitation=20 rights of the natural parents still another visitation right and = vesting=20 it in the grandfather. The right to determine the third parties = who are to=20 share in the custody and influence of and participate in the = visitation=20 privileges with the children should vest primarily with the parent = who is=20 charged with the daily responsibility of rearing the children. In = the=20 absence of unusual circumstances, these matters should not be of = judicial=20 concern." Chodzko, 66 Ill. 2d at 34-35.
[38]	We note parenthetically that the court in Chodzko did not = address the=20 propriety of the grandfather's suing his own child for visitation = rights=20 with the grandchildren.
[39]	In 1981, the General Assembly passed the first version of = section 607.=20 Specifically, the Illinois Marriage and Dissolution of Marriage = Act was=20 amended to provide that the "court may grant reasonable visitation = privileges to a grandparent or great-grandparent of any minor = child upon=20 the grandparents' or great-grandparents' petition to the court *** = if the=20 court determines that it is in the best interest and welfare of = the=20 child." Ill. Rev. Stat. 1981, ch. 40, par. 607(b) (as amended by = Public=20 Act 82-344, eff. January 1, 1982). This provision was construed as = recognizing a grandparent's right to seek visitation after the = parents=20 divorced. See Bush v. Squellati, 122 Ill. 2d 153, 157-58 (1988), = citing=20 Towne v. Cole, 133 Ill. App. 3d 380, 384 (1985).
[40]	Section 607 was amended the next year to add that the court "may = grant=20 reasonable visitation privileges to a grandparent or = great-grandparent=20 whose child has died where the court determines that it is in the = best=20 interests and welfare of the child." Ill. Rev. Stat. 1983, ch. 40, = par.=20 607(b) (as amended by Public Act 82-1002, eff. September 17,=20 1982).
[41]	In 1985, the General Assembly again added to the language of = section=20 607 to permit grandparent visitation following adoption of the = minor by=20 the spouse of the custodial parent after either death or = termination of=20 parental rights of the other parent. Ill. Rev. Stat. 1985, ch. 40, = par.=20 607(b) (as amended by Public Act 84-667, eff. September 20,=20 1985).
[42]	In 1989, the provision was rewritten to allow grandparents to = seek=20 visitation privileges regardless of whether, among other things, = "the=20 parent, through whom the grandparent or great-grandparent is = related to=20 the child, is living," and regardless of whether a proceeding for=20 dissolution of marriage is pending between the parents of the = child. Ill.=20 Rev. Stat. 1989, ch. 40, par. 607(b)(1)(A) (as amended by Public = Act=20 86-855, eff. September 8, 1989). Thus, this amendment allowed = grandparents=20 to seek visitation regardless of whether the nuclear family was = still=20 intact.
[43]	The applicable portion of the statute, however, was rewritten a = year=20 later. Ill. Rev. Stat. 1991, ch. 40, par. 607(b)(1) (as amended by = Public=20 Act 86-1452, eff. July 1, 1991). This amendment reflects the = current=20 version of section 607(b)(1), which we are addressing in this = case. See=20 750 ILCS 5/607(b)(1) (West 1998).
[44]	In interpreting the scope of section 607(b)(1), we are guided by = certain well-established principles of statutory construction. The = cardinal rule of statutory construction is to ascertain and give = effect to=20 the intent of the legislature. Paris v. Feder, 179 Ill. 2d 173, = 177=20 (1997); Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 531 = (1994).=20 The best evidence of legislative intent is the language used in = the=20 statute itself, which must be given its plain and ordinary = meaning. Paris,=20 179 Ill. 2d at 177; Eagan, 158 Ill. 2d at 531-32. The statute = should be=20 evaluated as a whole, with each provision construed in connection = with=20 every other section. Paris, 179 Ill. 2d at 177; Kraft, Inc. v. = Edgar, 138=20 Ill. 2d 178, 189 (1990). Further, in construing a statute, a court = is not=20 at liberty to depart from the plain language of the statute by = reading=20 into it exceptions, limitations, or conditions that the = legislature did=20 not express. Eagan, 158 Ill. 2d at 532; Kraft, Inc., 138 Ill. 2d = at 189.=20 Where the statutory language is clear and unambiguous, it will be = given=20 effect without resort to other aids of construction. Paris, 179 = Ill. 2d at=20 177; Eagan, 158 Ill. 2d at 532. We conduct de novo review when = resolving=20 an issue of statutory construction. Paris, 179 Ill. 2d at=20 177-78.
[45]	Applying these principles, we hold that section 607(b)(1) = permits a=20 grandparent to file a petition for visitation where the = grandparent's own=20 child, i.e., the parent, objects to the visitation between the = grandparent=20 and grandchild. The plain language of section 607(b)(1) provides = that the=20 "court may grant reasonable visitation privileges to a grandparent = * of=20 any minor child upon petition to the court by the grandparents * = if the=20 court determines that it is in the best interests and welfare of = the=20 child." 750 ILCS 5/607(b)(1) (West 1998). A petition for = visitation may be=20 filed "if one or more of the following circumstances exist: (A) = the=20 parents are not currently cohabiting on a permanent or an = indefinite=20 basis; (B) one of the parents has been absent from the marital = abode for=20 more than one month without the spouse knowing his or her = whereabouts; (C)=20 one of the parents is deceased; (D) one of the parents joins in = the=20 petition with the grandparents, great-grandparents, or sibling; or = (E) a=20 sibling is in State custody." 750 ILCS 5/607(b)(1) (West=20 1998).
[46]	Accordingly, a grandparent, such as Gail Lulay, may file a = petition=20 seeking visitation where, as in this case, the first enumerated=20 circumstance is present, i.e., the parents are not currently = cohabiting on=20 a permanent basis. In this case, the parents are divorced. The = statute=20 makes no exception for a situation where a parent who opposes the=20 visitation is the child of the petitioning grandparent. Thus, the = fact=20 that Michael Lulay, Gail's son and the father of the minor = children,=20 opposes the visitation does not alter Gail's ability under section = 607(b)(1) to petition for visitation. There is simply no language = in the=20 statute to support such an interpretation.
[47]	Furthermore, three of the enumerated circumstances under which a = grandparent may file a visitation petition refer to situations = involving=20 "one of the parents," without ever specifying that the petitioning = grandparent must be unrelated to the parent opposing visitation. A = grandparent may petition for visitation where "one of the parents = has been=20 absent from the marital abode for more than one month without the = spouse=20 knowing his or her whereabouts." 750 ILCS 5/607(b)(1)(B) (West = 1998).=20 Under this circumstance, the absent parent, by virtue of his or = her=20 absence, is presumably not the parent opposing visitation. The = statute=20 does not state that the present parent, who is opposing = visitation, must=20 be unrelated to the grandparent. A grandparent may also petition = for=20 visitation where "one of the parents is deceased." 750 ILCS = 5/607(b)(1)(C)=20 (West 1998). The statute does not state that the surviving parent, = who is=20 opposing the visitation, must be unrelated to the petitioning = grandparent.=20 Finally, a grandparent may petition for visitation where "one of = the=20 parents joins in the petition with the grandparents." 750 ILCS=20 5/607(b)(1)(D) (West 1998). The statute does not state that the = nonjoining=20 parent, the parent opposing visitation, must be unrelated to the=20 grandparent.
[48]	To construe section 607(b)(1) as barring a visitation petition = because=20 the grandparent is related to a parent who opposes visitation = would=20 impermissibly add an exception that the legislature did not = include.=20 Because the plain language of the statute permits the petition at = issue,=20 we need not resort to other aids of statutory = construction.
[49]	Michael and Kiley Lulay, the parents in this case, cite = decisions from=20 other jurisdictions to support their argument that section = 607(b)(1)=20 should not be interpreted to permit a grandparent to file a = petition for=20 visitation where the grandparent's own child objects. See Steward = v.=20 Steward, 111 Nev. 295, 303-04, 890 P.2d 777, 782 (1995) = (interpreting=20 grandparent visitation statute to "set up a presumption against=20 court-ordered grandparental visitation when divorced parents with = full=20 legal rights to the children agree that it is not in the child's = best=20 interest to see the grandparents); Olds v. Olds, 356 N.W.2d 571, = 574 (Iowa=20 1984) (holding that grandparent visitation statute does not = provide a=20 means for grandparents to seek visitation privileges from their = own=20 child); In re Adoption of a Child by M., 140 N.J. Super. 91, = 94-95, 355=20 A.2d 211, 213 (1976) (holding that, although grandparent = visitation=20 statute does not prohibit grandparents from seeking visitation = privileges=20 when their own child has such rights, "it would seldom, if ever, = be in the=20 best interests of the child" to grant such = visitation).
[50]	We have interpreted our Illinois statute by giving the language = used=20 in section 607(b)(1) its plain and ordinary meaning. Therefore, = the cases=20 to which the parents cite in this regard are = inapposite.
[51]	III. Constitutionality of Statute
[52]	Because we have determined that the plain language of section=20 607(b)(1) permits a grandparent to file a petition for visitation = where=20 the grandparent's own child objects to the visitation, we must now = address=20 whether section 607(b)(1), as so interpreted and thus applied to = this=20 case, where both parents oppose visitation, is constitutional. The = answer=20 is no. We hold that section 607(b)(1), as applied to this case, is = an=20 unconstitutional infringement on Michael and Kiley Lulay's = fundamental=20 liberty interest in raising their children.
[53]	We begin our analysis with the recognition that statutes carry a = strong presumption of constitutionality, and that the party = challenging=20 the constitutionality of a statute bears the burden of rebutting = this=20 presumption. Best v. Taylor Machine Works, 179 Ill. 2d 367, 377 = (1997);=20 see Tully v. Edgar, 171 Ill. 2d 297, 304 (1996). This court, = however, has=20 the duty to interpret the statute and to protect the rights of = citizens=20 against acts beyond the scope of the legislature's power. Best, = 179 Ill.=20 2d at 378. We review de novo the constitutionality of a statute. = See=20 Russell v. Department of Natural Resources, 183 Ill. 2d 434, 441=20 (1998).
[54]	A court generally applies the rational basis test in examining = the=20 constitutionality of a statute under substantive due process. See = Tully,=20 171 Ill. 2d at 304. To satisfy this test, a statute need only bear = a=20 rational relation to a legitimate state purpose, and must be = neither=20 arbitrary nor discriminatory. Tully, 171 Ill. 2d at 304. If, = however,=20 challenged legislation impinges upon a fundamental constitutional = right,=20 the court will examine the statute under the strict scrutiny = standard.=20 Tully, 171 Ill. 2d at 304. To withstand the strict scrutiny = standard, a=20 statute must serve a compelling state interest, and be narrowly = tailored=20 to serve the compelling interest, i.e., the legislature must use = the least=20 restrictive means to serve the compelling interest. See Tully, 171 = Ill. 2d=20 at 304-05; People v. R.G., 131 Ill. 2d 328, 342 (1989). = Accordingly, we=20 must first determine whether section 607(b)(1) impinges upon a = fundamental=20 constitutional right such that we must review the statute under = the strict=20 scrutiny test.
[55]	A. Fundamental Right
[56]	The fourteenth amendment to the United States Constitution = provides=20 that no state shall "deprive any person of life, liberty, or = property,=20 without due process of law." The due process clause "includes a=20 substantive component that `provides heightened protection against = government interference with certain fundamental rights and = liberty=20 interests.' " Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 56, 120 S. = Ct. at=20 2059-60, quoting Washington v. Glucksberg, 521 U.S. 702, 720, 138 = L. Ed.=20 2d 772, 787, 117 S. Ct. 2258, 2267 (1997).
[57]	As the United States Supreme Court stated in Troxel, the = "liberty=20 interest at issue in this case-the interest of parents in the = care,=20 custody, and control of their children-is perhaps the oldest of = the=20 fundamental liberty interests recognized by this Court." Troxel, = 530 U.S.=20 at ___, 147 L. Ed. 2d at 56, 120 S. Ct. at 2060 (reviewing Court = decisions=20 that have recognized and explained the fundamental interest of = parents in=20 the upbringing of their children); accord People v. R.G., 131 Ill. = 2d 328,=20 342-43 (1989) (upholding the constitutionality of the "Minors = Requiring=20 Authoritative Intervention" statutes (see Ill. Rev. Stat. 1987, = ch. 37,=20 par. 803-1 et seq.) and recognizing that, under United States = Supreme=20 Court precedent, "parents have a liberty interest in bearing and = raising=20 their children").
[58]	In Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. = 625=20 (1923), the Court held unconstitutional a statute that prohibited = the=20 teaching of certain foreign languages at an elementary school. The = Court=20 reasoned that the due process clause protects the rights of = parents to=20 "establish a home and bring up children" and "to control the = education of=20 their own." Meyer, 262 U.S. at 399, 401, 67 L. Ed. at 1045, 1046, = 43 S.=20 Ct. at 626, 627. Two years later, in Pierce v. Society of the = Sisters of=20 the Holy Names of Jesus & Mary, 268 U.S. 510, 69 L. Ed. 1070, = 45 S.=20 Ct. 571 (1925), the Court held unconstitutional a statute that = required=20 parents to send their children to public schools, reasoning that = the=20 statute interfered with the liberty right of parents "to direct = the=20 upbringing and education of children under their control." The = Pierce=20 Court explained that the "child is not the mere creature of the = State;=20 those who nurture him and direct his destiny have the right, = coupled with=20 the high duty, to recognize and prepare him for additional = obligations."=20 Pierce, 268 U.S. at 535, 69 L. Ed. at 1078, 45 S. Ct. at=20 573.
[59]	Years later, the fundamental right of parents to raise their = children=20 remained an important focus in the jurisprudence of the United = State=20 Supreme Court. In Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d = 551, 92=20 S. Ct. 1208 (1972), the Court held unconstitutional a statute that = declared that, upon the death of the mother, children of unwed = fathers=20 became wards of the state. The Court reasoned: "The private = interest here,=20 that of a man in the children he has sired and raised, undeniably = warrants=20 deference and, absent a powerful countervailing interest, = protection. It=20 is plain that the interest of a parent in the companionship, care, = custody, and management of his or her children `come[s] to this = Court with=20 a momentum for respect lacking when appeal is made to liberties = which=20 derive merely from shifting economic arrangements.' [Citation.]" = Stanley,=20 405 U.S. at 651, 31 L. Ed. 2d at 558, 92 S. Ct. at = 1212.
[60]	Soon after, in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d = 15, 92=20 S. Ct. 1526 (1972), the Court held, albeit primarily on the basis = of the=20 first amendment right to free exercise of religion, that a state's = compulsory education law did not apply to a group of Amish = children. The=20 Court emphasized: "The history and culture of Western civilization = reflect=20 a strong tradition of parental concern for the nurture and = upbringing of=20 their children. This primary role of the parents in the upbringing = of=20 their children is now established beyond debate as an enduring = American=20 tradition." Yoder, 406 U.S. at 232, 32 L. Ed. 2d at 35, 92 S. Ct. = at=20 1541-42; see also Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. = 2d 599,=20 606, 102 S. Ct. 1388, 1394 (1982) (determining the standard of = proof=20 necessary in termination of parental rights case and noting the = Court's=20 "historical recognition that freedom of personal choice in matters = of=20 family life is a fundamental liberty interest protected by the = Fourteenth=20 Amendment"); Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, = 118, 99=20 S. Ct. 2493, 2504 (1979) (stating that "[o]ur jurisprudence = historically=20 has reflected Western civilization concepts of the family as a = unit with=20 broad parental authority over minor children"). In light of this = extensive=20 precedent, the Court in Troxel concluded that "it cannot now be = doubted=20 that the Due Process Clause of the Fourteenth Amendment protects = the=20 fundamental right of parents to make decisions concerning the = care,=20 custody, and control of their children." Troxel, 530 U.S. at ___, = 147 L.=20 Ed. 2d at 57, 120 S. Ct. at 2060.
[61]	Section 607(b)(1) allows grandparents to petition for = court-ordered=20 visitation with the grandchildren when both parents have decided = not to=20 allow such visitation. By allowing the State to interfere with the = parents' decision in this regard, section 607(b)(1) impinges upon = the=20 fundamental constitutional right of parents to make decisions = regarding=20 the upbringing of their children.
[62]	The State and the grandmother, Gail Lulay, argue that, even if = section=20 607(b)(1) impinges upon a fundamental right, the statute does not=20 significantly interfere with the fundamental right, and therefore, = we=20 should apply the rational basis test in reviewing the = constitutionality of=20 section 607(b)(1). See R.G., 131 Ill. 2d at 343 (stating that only = statutes that "significantly interfere" with a fundamental right = are=20 subject to strict scrutiny), citing Zablocki v. Redhail, 434 U.S. = 374,=20 386-88, 54 L. Ed. 2d 618, 630-31, 98 S. Ct. 673, 681-82 (1978). = The State=20 contends that section 607(b)(1) does not give grandparents the = absolute=20 right to visitation. Rather, the statute merely creates a = procedure by=20 which grandparents may petition for visitation under certain=20 circumstances. The State points out that section 607(b)(1) states = only=20 that a court "may grant reasonable visitation privileges" = (emphasis added)=20 (750 ILCS 5/607(b)(1) (West 1998)) and that the grandparents have = the=20 burden of proving that visitation is in the child's best interests = and=20 welfare.
[63]	In light of the nature of the fundamental right at stake, the = State's=20 and the grandmother's argument is not persuasive. Encompassed = within the=20 well-established fundamental right of parents to raise their = children is=20 the right to determine with whom their children should associate. = See Hoff=20 v. Berg, 595 N.W.2d 285, 291 (N.D. 1999) (stating that "[d]eciding = when,=20 under what conditions, and with whom their children may associate = is among=20 the most important rights and responsibilities of parents," in = holding=20 that its most recent grandparent visitation statute was = unconstitutional).=20 It is the role of parents to nurture their children and to = influence and=20 shape their children's character. As the United States Supreme = Court has=20 recognized, "[i]t is cardinal with us that the custody, care and = nurture=20 of the child reside first in the parents, whose primary function = and=20 freedom include preparation for obligations the state can neither = supply=20 nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. = 645,=20 652, 64 S. Ct. 438, 442 (1944). This "preparation for obligation" = includes=20 the parents' determination of who will be instrumental in the = development=20 of their child's personality and character. Section 607(b)(1) = allows the=20 State to usurp the decisionmaking function of parents with respect = to the=20 relationships that their children will have. This decisionmaking = function=20 lies at the core of parents' liberty interest in the care, = custody, and=20 control of their children. To hold that section 607(b)(1) is not a = significant interference with the fundamental right of parents to = raise=20 their children would be to effectively obliterate that fundamental = right.
[64]	The significant interference that section 607(b)(1) has on = parents'=20 fundamental right is further evidenced by the procedure = contemplated by=20 the statute. The grandparents may file a petition for visitation = under=20 certain circumstances; in this case, where the parents are = divorced. The=20 parent or parents are then haled into court. The parents must = presumably=20 hire attorneys, and then present evidence and defend their = decision=20 regarding the visitation before a trial court. The parents' = authority over=20 their children is necessarily diminished by this procedure. This = can only=20 be characterized as a significant interference with parents' = fundamental=20 right to make decisions regarding the upbringing of their = children.=20 Indeed, the "burden of litigating a domestic relations proceeding = can=20 itself be `so disruptive of the parent-child relationship that the = constitutional right of a custodial parent to make certain basic=20 determinations for the child's welfare becomes implicated.' " = Troxel, 530=20 U.S. at ___, 147 L. Ed. 2d at 62, 120 S. Ct. at 2065, quoting 530 = U.S. at=20 ___, 147 L. Ed. 2d at 78, 120 S. Ct. at 2079 (Kennedy, J.,=20 dissenting).
[65]	In comparison, in People v. R.G., 131 Ill. 2d 328, 343-44 = (1989), this=20 court concluded that the "Minors Requiring Authoritative = Intervention"=20 statutes (see Ill. Rev. Stat. 1987, ch. 37, par. 803-1 et seq.)=20 "necessarily affect[ ] the fundamental right of the parents of a = runaway=20 minor to control over their family." Those statutes provide, among = other=20 things, that if the State takes a minor into limited custody and = the minor=20 refuses to return home, the State, during the first 21 days, must = refuse=20 any demand made by the parents to return the child home. The court = reasoned that, even though "the State neither takes the minor out = of the=20 home nor alters the parents' temporary or permanent custody of the = minor,=20 the State nevertheless intercedes, on behalf of the minor, in the = family=20 relationship." R.G., 131 Ill. 2d at 344. Thus, the statutes = "significantly=20 interfere[ ] with the family relationship and can only be = justified if the=20 State has a compelling interest." R.G., 131 Ill. 2d at = 344.
[66]	Likewise, by allowing the State to override the decisions of = parents=20 regarding the upbringing of their children, section 607(b)(1)=20 significantly interferes with the fundamental rights of parents. = Indeed,=20 section 607(b)(1) ultimately allows the State, under certain=20 circumstances, to force parents to deliver their children to = individuals=20 whom the parents have decided the children should not see. The=20 constitutionality of section 607(b)(1), which significantly = interferes=20 with a fundamental constitutional right, must therefore be = evaluated under=20 strict scrutiny. See Tully, 171 Ill. 2d at 304.
[67]	B. Strict Scrutiny
[68]	As discussed, to withstand the strict scrutiny test, a statute = must=20 serve a compelling state interest, and the statute must be = narrowly=20 tailored to serve the compelling interest. See Tully, 171 Ill. 2d = at=20 304-05; R.G., 131 Ill. 2d at 342. The State and the grandmother = argue that=20 the State has a compelling interest, as parens patriae, to protect = children whose lives have been disrupted through certain = triggering events=20 such as the divorce of the parents. The State cites the decision = in West=20 v. West, 294 Ill. App. 3d 356, 364 (1998), which, in upholding the = facial=20 validity of section 607(b)(1), reasoned that the State "has a = compelling=20 interest in maintaining and safeguarding an established=20 grandparent-grandchild relationship where it has been proven by = the=20 grandparent that it is in the best interest of the child for the=20 relationship to continue."
[69]	The State also cites legislative history to support the = existence of a=20 compelling interest in this case. When the first version of the = Illinois=20 grandparent visitation statute was before the General Assembly, = the bill's=20 sponsor, Representative Matijevich, argued that the statute "will = help=20 assure that close grandparent-child ties and relationships will = not be=20 severed because of divorce." 82d Ill. Gen. Assem., House = Proceedings, May=20 6, 1981, at 146 (statements of Representative Matijevich). = Representative=20 Stewart argued that "the relationship of grandchildren and their=20 grandparents should be one that the state should encourage, and I = believe=20 that grandparents should have an opportunity even if the parents = cannot=20 see their way clear [to] provi[d]ing them one, to allow that = relationship=20 to continue. * Certainly children in divorce cases do need some = basis of=20 security. * [T]he opportunity of continuing a relationship with=20 grandparents is important *." 82d Ill. Gen. Assem., House = Proceedings,=20 May 6, 1981, at 149-50 (statements of Representative Stewart).=20 Representative Topinka added that "the trauma of an abrupt = termination of=20 a meaningful relationship with grandchildren can really be = detrimental to=20 the child. This provides the entry for grandparents to have some = redress=20 to get to their * grandchildren, and again to create some form = of=20 family." 82d Ill. Gen. Assem., House Proceedings, May 6, 1981, at = 150-51=20 (statements of Representative Topinka).
[70]	In contrast, the parents cite decisions from other jurisdictions = that=20 question the premise that grandparent visitation is always = beneficial to=20 the child. In Brooks v. Parkerson, 265 Ga. 189, 194, 454 S.E.2d = 769, 773=20 (1995), for example, the Supreme Court of Georgia held its = grandparent=20 visitation statute unconstitutional and noted that "there is = insufficient=20 evidence that supports the proposition that grandparents' = visitation with=20 their grandchildren always promotes the children's health or = welfare."=20 Moreover, "even if such a bond exists and would benefit the child = if=20 maintained, the impact of a lawsuit to enforce maintenance of the = bond=20 over the parents' objection can only have a deleterious effect on = the=20 child." Brooks, 265 Ga. at 194, 454 S.E.2d at 773. Likewise, in In = re=20 Application of Herbst, 971 P.2d 395, 399 (Okla. 1998), the Supreme = Court=20 of Oklahoma, in holding that the Oklahoma grandparent visitation = statute=20 was unconstitutional as applied to parents who were married and = living=20 together and who both opposed the grandparent's visitation with = their=20 child, reasoned that a "vague generalization about the positive = influence=20 many grandparents have upon their grandchildren falls far short of = the=20 necessary showing of harm which would warrant the state's = interference=20 with this parental decision regarding who may see a = child."
[71]	Generalizations about whether grandparent visitation is = beneficial to=20 the children are not determinative of this case. We recognize that = the=20 State has a compelling interest in the welfare of minors under = certain=20 circumstances. Indeed, this court in R.G. held that the rights of = parents=20 must yield to the State's compelling interest to intercede on = behalf of=20 minors who have absented themselves from home without parental = consent.=20 R.G., 131 Ill. 2d at 353. The court reasoned that "[w]hen a minor = detaches=20 himself or herself from parental authority by running away from = home, the=20 minor jeopardizes his or her welfare. The minor must find money, = food and=20 shelter, not to mention adult guidance, schooling, and medical = care, among=20 other things." R.G., 131 Ill. 2d at 346.
[72]	Similarly, in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. = 645, 64=20 S. Ct. 438 (1944), the Court held that a state's child labor laws, = which=20 prohibited minors from selling merchandise on a public street, = were=20 constitutional as applied to the case. The Court therefore upheld = the=20 conviction of a parent under these statutes for allowing her child = to sell=20 religious magazines on a public street. The Court recognized the=20 fundamental right of parents to raise their children but reasoned = that the=20 state, acting as parens patriae, may restrict parents' control by = such=20 things as requiring school attendance, mandating vaccination for = the=20 children, and regulating the children's labor. See Prince, 321 = U.S. at=20 166-67, 88 L. Ed. at 652-53, 64 S. Ct. at 442; see also Yoder, 406 = U.S. at=20 230, 32 L. Ed. 2d at 33, 92 S. Ct. at 1540 (distinguishing Prince = on the=20 basis that exempting Amish children from compulsory school = attendance law=20 was not a case in which "any harm to the physical or mental health = of the=20 child or to the public safety, peace, order, or welfare has been=20 demonstrated or may be properly inferred").
[73]	Here, the State essentially argues that it has a compelling = interest=20 in maintaining the relationship between a grandparent and her=20 grandchildren where the children's parents are divorced yet stand = united=20 in their parental decision that the children should not visit with = the=20 grandparent. The State maintains that it has an interest under = these=20 circumstances in protecting these children whose lives have been = disrupted=20 because of their parents' divorce. This interest is nothing like = the=20 compelling interests involved in cases such as R.G. and Prince. = Moreover,=20 the parents in this case, Michael and Kiley Lulay, have not been = alleged=20 to be unfit. We therefore presume that they are acting in the best = interests of their children. See Troxel, 530 U.S. at ___, 147 L. = Ed. 2d at=20 58, 120 S. Ct. at 2061. Although the parents are divorced, they = agree that=20 it would not be in the best interests of their children to spend = time with=20 their grandmother.
[74]	We are not unsympathetic to the plight of grandparents who wish = to=20 visit with their grandchildren. In fact, we commend grandparents = who are=20 involved in the lives of their grandchildren and recognize their = important=20 role in many families. Nevertheless, in this case, we cannot allow = the=20 State to use its power to impose its judgment that visitation may = be=20 better for the grandchildren over the joint decision of two fit = parents=20 who have determined that the visitation should not occur. The = facts of=20 this case do not warrant the State's interference with the = parents' joint=20 decision regarding who may have visitation privileges with their = children.=20 To allow such interference would unconstitutionally infringe on = the=20 parents' well-established fundamental liberty interest in making = decisions=20 regarding the upbringing of their children.
[75]	We hold that section 607(b)(1), as interpreted and applied to = this=20 case, does not serve a compelling state interest and therefore = does not=20 satisfy the strict scrutiny test. We therefore hold that section=20 607(b)(1), as applied to this case, is an unconstitutional = infringement on=20 Michael and Kiley Lulay's fundamental liberty interest in raising = their=20 children. Because we hold that the application of section = 607(b)(1) to=20 this case is unconstitutional, we need not address the father's = argument=20 that section 607(b)(1) is facially unconstitutional. We note that = the=20 State and the grandmother maintain that this argument is outside = the scope=20 of the certified question.
[76]	CONCLUSION
[77]	Section 607(b)(1) permits a grandparent to file a petition for=20 visitation where the grandparent's own child, i.e., the parent, = objects to=20 the visitation between the grandparent and grandchild. Therefore, = we=20 answer the first portion of the certified question in the = affirmative. We=20 hold, however, that section 607(b)(1), as applied to this case, is = an=20 unconstitutional infringement on Michael and Kiley Lulay's = fundamental=20 liberty interest in raising their children. We thus answer the = second=20 portion of the certified question in the = negative.
[78]	We reverse the decision of the circuit court of Du Page County, = which=20 denied the parents' motion to dismiss Gail Lulay's petition for=20 visitation. We remand this cause to the circuit court of Du Page = County=20 with directions to dismiss Gail Lulay's visitation = petition.
[79]	Reversed and remanded with directions.
[80]	JUSTICE HEIPLE, specially concurring:
[81]	I agree with the decision to reverse the trial court on grounds = of=20 unconstitutionality. However, the majority fails to settle the = issue of=20 grandparental visitation under our statute. The majority finds = that=20 section 607(b)(1) of the Illinois Marriage and Dissolution of = Marriage Act=20 (750 ILCS 5/607(b)(1) (1998) is unconstitutional as applied to = this case's=20 particular set of facts. This leaves open the possibility that = other=20 grandparents, under a slightly different set of facts, might = successfully=20 petition for grandparent visitation under section 607. Section = 607,=20 however, should be deemed unconstitutional on its = face.
[82]	In Troxel v. Granville, 530 U.S. at ___, 147 L. Ed. 2d 49, 120 = S. Ct.=20 2054 (2000), a mother in the state of Washington tried to limit = visitation=20 after the father of her children committed suicide. The paternal=20 grandparents responded by petitioning for visitation. The United = States=20 Supreme Court noted that, under the grandparent visitation statute = in=20 effect in Washington, "a court can disregard and overturn any = decision by=20 a fit custodial parent concerning visitation whenever a third = party=20 affected by the decision files a visitation petition, based solely = on the=20 judge's determination of the child's best interests." (Emphasis in = original.) Troxel, 530 U.S. at ___, 147 L. Ed. 2d at 57-58, 120 S. = Ct. at=20 2061. The Court went on to state that "the Due Process Clause does = not=20 permit a State to infringe on the fundamental right of parents to = make=20 childrearing decisions simply because a state judge believes a = `better'=20 decision could be made." Troxel, 530 U.S. at ___, 147 L. Ed. 2d at = 61, 120=20 S. Ct. at 2064.
[83]	The statute at issue in this case, section 607, states in = pertinent=20 part that:
[84]	"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 * if the court determines that it is in = the best=20 interests and welfare of the child . ** [A] petition for = visitation=20 privileges may be filed under this paragraph if one or more of the = following circumstances exist:
[85]	(C) one of the parents is deceased[.]" 750 ILCS 5/607(b)(1)(C) = (West=20 1996).
[86]	Thus, under section 607, if one parent dies, a grandparent can=20 petition for visitation, which can be granted if the court finds = that=20 visitation is in the best interests of the child. This case is = simply=20 Troxel by a different name and is precisely the remedy the Supreme = Court=20 held unconstitutional. The rationale of Troxel clearly points to a = ruling=20 that section 607 be held unconstitutional on its face. = Accordingly, I=20 respectfully specially concur.
[87]	JUSTICE RATHJE, also specially concurring:
[88]	The majority holds that section 607 of the Illinois Marriage and = Dissolution of Marriage Act (750 ILCS 5/607 (West 1998)) allows = Gail Lulay=20 to file a petition in this case and that "[t]o allow such = interference=20 would unconstitutionally infringe on the parents' well-established = fundamental liberty interest in making decisions regarding the = upbringing=20 of their children" (Slip op. at 19). With both of those = propositions, I=20 agree. The majority then continues, holding that the statute is=20 unconstitutional only "as interpreted and applied to this case." = (Emphasis=20 added.) Slip op. at 19. With that, I respectfully = disagree.
[89]	I would hold the statute unconstitutional on its face. In the=20 majority's own words,
[90]	"section 607(b)(1) allows the State to usurp the decisionmaking=20 function of parents with respect to the relationships that their = children=20 will have. This decisionmaking function lies at the core of = parents'=20 liberty interest in the case, custody, and control of their = children."=20 Slip op. at 5.
[91]	Contrary to the majority's conclusion, such usurpation is not a=20 function of the particular facts in this case. We are reviewing = this case=20 not because Gail Lulay simply failed to allege that Michael and = Kiley=20 Lulay are unfit parents. Rather, this case is before us because = section=20 607(b)(1), on its face, does not require any such allegation = before any=20 parent can be dragged into court to defend his or her parental=20 decisionmaking to the State. Consequently, the fatal flaw that the = majority so astutely identifies in the passage above will be = present in=20 every section 607(b)(1) case, and the statute is unconstitutional = on its=20 face. This is a facial flaw, and I would hold section 607(b)(1)=20 unconstitutional on its face.
[92]	JUSTICES HEIPLE and FREEMAN join in this special=20 = concurrence.

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