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Wickham v. Byrne, 199 Ill.2d = 309, 769=20 N.E.2d 1, 263 Ill.Dec. 799 (Ill. 04/18/2002)

[1]	Illinois Supreme Court
[2]	No. 92048
[3]	199 Ill.2d 309, 769 N.E.2d 1, 263 Ill.Dec. 799,=20 = 2002.IL.0000334<http://www.versuslaw.com>
[4]	April 18, 2002
[5]	VIRGINIA WICKHAM, APPELLEE, v. PAUL MICHAEL BYRNE,=20 APPELLANT. BRENT LANGMAN ET AL., APPELLANTS, v. AMY = LANGMAN,=20 APPELLEE.
[6]	The opinion of the court was delivered by: Justice=20 Fitzgerald
[7]	UNPUBLISHED
[8]	Docket Nos. 92048, 92135 cons.-Agenda 26-January = 2002.
[9]	At issue in these consolidated cases is whether certain = provisions of=20 section 607 of the Illinois Marriage and Dissolution of Marriage = Act=20 (Act), commonly called the grandparent visitation statute, violate = a=20 parent's due process rights. See 750 ILCS 5/607(b)(1), (b)(3) = (West=20 2000).
[10]	BACKGROUND
[11]	The Wickham Petition
[12]	Paul Michael Byrne (Paul) and Lizabeth Wickham Byrne (Lizabeth) = were=20 married and had one child, J.B., born November 7, 1997. Lizabeth = died=20 September 14, 1998. In her last will and testament, Lizabeth = expressed a=20 wish for frequent visitation between J.B. and her mother, Virginia = Wickham=20 (Virginia). After Lizabeth's death, Paul agreed to maintain the=20 relationship between Virginia and J.B., often driving J.B. 50 = minutes to=20 Virginia's home. Virginia, however, requested more time with J.B. = and=20 asked Paul to allow unsupervised overnight visits. Paul offered to = drive=20 J.B. for visits when his schedule permitted, but refused to leave = J.B.=20 with Virginia unsupervised and overnight. Unable to resolve the = conflict,=20 Virginia filed a petition in the circuit court of Cook County for=20 grandparent visitation under section 607(b)(1) of the Act. In her=20 petition, Virginia requested mandatory overnight visitation with = J.B. two=20 full weekends a month.
[13]	Initially, Paul moved to dismiss the petition based upon = decisions of=20 the United States Supreme Court and this court. See Troxel v. = Granville,=20 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (plurality = opinion);=20 Lulay v. Lulay, 193 Ill. 2d 455 (2000). Paul argued that section = 607(b)(1)=20 of the Act violated the due process clauses of the Illinois and = United=20 States Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, = art. I,=20 =C2=A7=C2=A71, 2. The trial court denied the = motion.
[14]	At the hearing on Virginia's petition, the court heard testimony = from=20 Paul, Virginia, and J.B.'s pediatrician. Prior to ruling, the = court stated=20 that "[t]he standard to be used in grandparent's visitation is the = best=20 interest of the child. Generally, it's presumed that a = relationship with a=20 grandparent is in the best interest of the child." However, the = court held=20 that Virginia's attempts to undermine the relationship between = Paul and=20 J.B. by filing frivolous and unfounded complaints with the = Department of=20 Children and Family Services and interfering with J.B.'s pediatric = care=20 without Paul's consent warranted limited visitation. Thus, the = court=20 denied overnight visitation, but ordered supervised visitation = with J.B.=20 at Paul's home four hours a week. The trial court appointed a = child=20 representative and set the case for status in 60 = days.
[15]	Following the trial court order, Paul filed an "Amended Motion = to=20 Dismiss Complaint" and renewed his argument based upon Troxel and = Lulay.=20 The trial court again denied the motion, finding = that:
[16]	"[T]he state may have a compelling interest in ordering = visitation=20 between J.B. and Ms. Wickham over Mr. Byrne's = objection.
[17]	Mr. Byrne has not shown that the asserted state interest in = requiring=20 him to permit Ms. Wickham to visit with J.B. is either illusory or = not=20 compelling. Under these circumstances, this court holds that, as = applied=20 to the facts of this case as developed thus far, Section 607(b)(1) = does=20 not violate Mr. Byrne's constitutional parental = rights."
[18]	Paul filed an application for an interlocutory appeal under = Illinois=20 Supreme Court Rule 308. See 155 Ill. 2d R. 308. The appellate = court denied=20 Paul's application. We granted Paul's petition for leave to = appeal. See=20 177 Ill. 2d R. 315(a).
[19]	The Langman Petition
[20]	Amy and Rhett Langman were married and had two children, T.L., = born=20 September 3, 1995, and P.L., born June 25, 1998. Rhett died on = September=20 20, 1998. Prior to Rhett's death, his parents, Rita and Brent = Langman=20 (Rita and Brent), maintained a close relationship with their=20 grandchildren, seeing the children two to three times a month. = Immediately=20 after Rhett's death, Rita and Brent continued this relationship by = baby-sitting the children each Tuesday night so that Amy could = attend=20 social activities. Rita and Brent asked Amy for more time with the = children, including overnight visits. Amy rejected the idea and = told Rita=20 and Brent that she was unhappy with their refusal to follow her = directions=20 when they baby-sat the children. Amy also explained to Rita and = Brent that=20 she was uncomfortable with their home environment and the = children's=20 exposure to their uncle's lifestyle. Amy agreed to visitation, but = she=20 demanded Rita and Brent visit the children at her home, while she = was=20 present.
[21]	Unable to resolve their differences, Rita and Brent filed a = petition=20 in the circuit court of Kankakee County for grandparent visitation = under=20 section 607(b)(1). The petition stated, in part: "That it is in = the minor=20 children's best interest that the Petitioners [Rita and Brent] be = allowed=20 specific visitation with them outside of the presence of the = Respondent=20 [Amy] in order to further and foster the close family relationship = that=20 they previously shared and in order that they grow up sharing the = love and=20 concern of their father's family as well as that of their mother." = After=20 Rita and Brent filed their petition for visitation, Amy moved to = Missouri,=20 six hours away from Rita and Brent, with the children to make a = fresh=20 start, telling Rita and Brent, "I don't come back for my own = family and I=20 don't come back for my friends."
[22]	On March 17, 1999, at the hearing on the petition for = visitation, 17=20 witnesses testified. Additionally, the parties submitted written = closing=20 arguments to the court, which included suggested visitation = schedules. On=20 August 2, 2000, the trial court issued its order with an = accompanying=20 memorandum. In its memorandum, the trial court = stated:
[23]	"[T]estimony revealed the mother is a loving caring mother who = wishes=20 to protect her children from exposure to things she feels are in=20 appropriate [sic].
[24]	All of the parties are responsible, moral and caring people. The = children's mother does not object to visitation but only on her = terms,=20 which appear to be supervised visits in her = presence.
[25]	This is a particularly difficult case because all of the parties = believe they are doing what is in the best interest of the = children. The=20 Court can not do more than balance the right of the parent and=20 grandparents. The State of Illinois has sought to protect = relationships=20 children have with their grandparents yet it also must protect the = rights=20 of a parent to whose preliminary right and responsibility it is to = care=20 for and nurture their children.
[26]	The real test, in the best interest of the children, is the test = that=20 must be applied here. It has been the law of Illinois for over 30 = years=20 that when considering the best interest of the children the Court = must=20 look at `all matters that have a bearing upon the welfare of the = child.'=20 "
[27]	The trial court continued: "[T]here is a strong indication that=20 unsupervised grandparental visitation would be of great benefit to = the=20 children. Their father is deceased, his surviving family is the = only=20 connection the children can have with those who had an intimate = and close=20 family relationship." The trial court ordered visitation, = beginning=20 gradually with afternoon visits, and eventually leading to = unsupervised=20 visits one full weekend each month. The trial court ordered that = Amy split=20 the costs of transportation with Rita and Brent. Further, the = trial court=20 ordered telephone contact one day a week for up to 15 minutes. Amy = appealed.
[28]	The appellate court reversed the trial court order. 325 Ill. = App. 3d=20 101, 108. Citing to Troxel and Lulay, the appellate court held = that=20 section 607(b)(1) of the Act, as applied in this case, = unconstitutionally=20 infringed on Amy's fundamental right to make decisions concerning = the=20 care, custody, and control of her children. 325 Ill. App. 3d at = 107. The=20 appellate court declined to consider whether section 607(b)(1) is = facially=20 unconstitutional. 325 Ill. App. 3d at 107.
[29]	We granted Rita and Brent's petition for leave to appeal and=20 consolidated these cases.
[30]	ANALYSIS
[31]	Less than two years after our decision in Lulay, we are asked = again to=20 consider the constitutionality of the Act. In Lulay, we held that = section=20 607(b)(1), as applied to the parents' joint decision to deny = grandparent=20 visitation, unconstitutionally infringed on their = "well-established=20 fundamental liberty interest in making decisions regarding the = upbringing=20 of their children." Lulay, 193 Ill. 2d at 479. In the instant = matter, we=20 address the constitutionality of sections 607(b)(1) and (b)(3) in = the=20 context of a single parent's decision concerning visitation with a = deceased spouse's parents.
[32]	Citing to Troxel, and Lulay, Paul and Amy argue that sections=20 607(b)(1) and (b)(3) as applied to a single parent's decision = regarding=20 grandparent visitation violate a parent's fundamental = constitutional right=20 to make decisions concerning the care, custody, and control of his = or her=20 children. Additionally, Paul argues that sections 607(b)(1) and = (b)(3) are=20 facially unconstitutional.
[33]	Section 607(b) states, in pertinent part:
[34]	"(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) *** if one or more of the = following=20 circumstances exist:
[35]	(A) the parents are not currently cohabiting on a permanent or = an=20 indefinite basis;
[36]	(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;
[37]	(C) one of the parents is deceased;
[38]	(D) one of the parents joins in the petition with the = grandparents,=20 great-grandparents, or sibling; or
[39]	(E) a sibling is in State custody.
[40]	(3) When one parent is deceased, the surviving parent shall not=20 interfere with the visitation rights of the grandparents." 750 = ILCS=20 5/607(b) (West 2000).
[41]	Under Illinois law, statutes carry a strong presumption of=20 constitutionality. People ex rel. Ryan v. World Church of the = Creator, 198=20 Ill. 2d 115, 120 (2001); People v. Sanders, 182 Ill. 2d 524, 528 = (1998).=20 Whenever reasonable, courts must construe a statute to uphold its=20 constitutional validity. World Church of the Creator, 198 Ill. 2d = at 120;=20 Sanders, 182 Ill. 2d at 528. A statute is facially invalid only if = the=20 party challenging the enactment can establish " `that no set of=20 circumstances exists under which the Act would be valid.' " In re = C.E.,=20 161 Ill. 2d 200, 210-11 (1994), quoting United States v. Salerno, = 481 U.S.=20 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987). We = review=20 de novo the constitutionality of the Act. Lulay, 193 Ill. 2d at=20 469.
[42]	The fourteenth amendment of the United States Constitution = provides=20 that no state shall "deprive any person of life, liberty, or = property,=20 without due process of law." U.S. Const., amend. XIV, =C2=A71. The = due process=20 clause grants "heightened protection against government = interference with=20 certain fundamental rights and liberty interests." Washington v.=20 Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct. = 2258,=20 2267 (1997). One of the fundamental rights protected under the = fourteenth=20 amendment is the right of parents to make decisions concerning the = care,=20 custody, and control of their children without unwarranted state=20 intrusion. Troxel, 530 U.S. at 66, 147 L. Ed. 2d at 57, 120 S. Ct. = at=20 2060; Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, = 606, 102 S.=20 Ct. 1388, 1394-95 (1982); Parham v. J.R., 442 U.S. 584, 602, 61 L. = Ed. 2d=20 101, 118, 99 S. Ct. 2493, 2504 (1979); Quilloin v. Walcott, 434 = U.S. 246,=20 255, 54 L. Ed. 2d 511, 519, 98 S. Ct. 549, 554-55 (1978); Stanley = v.=20 Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558, 92 S. Ct. = 1208,=20 1212-13 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. = 2d 15,=20 35, 92 S. Ct. 1526, 1541-42 (1972); Prince v. Massachusetts, 321 = U.S. 158,=20 165-66, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944); Pierce v. = Society=20 of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. = 510,=20 534-35, 69 L. Ed. 1070, 1078, 45 S. Ct. 571, 573 (1925); Meyer v.=20 Nebraska, 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, = 626=20 (1923). Decisions concerning care, custody, and control include, = for=20 example, decisions about a child's education, religion, and = general=20 upbringing. See Lulay, 193 Ill. 2d at 471-72. State interference = with=20 fundamental parental childrearing rights is justified in limited = instances=20 to protect the health, safety, and welfare of children. See, e.g., = Prince,=20 321 U.S. at 166-67, 88 L. Ed. at 653, 64 S. Ct. at 442 ("the state = has a=20 wide range of power for limiting parental freedom and authority in = things=20 affecting the child's welfare"). Under Illinois law, examples of = these=20 limited instances include: required testing for phenylketonuria at = birth=20 (410 ILCS 240/1 (West 2000)); required immunization for = diphtheria,=20 pertussis, and tetanus (410 ILCS 315/2 (West 2000)); required = hearing and=20 visual examinations (410 ILCS 205/1 et seq. (West 2000)); and = prohibited=20 child labor (820 ILCS 205/1 et seq. (West = 2000)).
[43]	The petitioning grandparents argue that the under the Act, the = trial=20 judge steps into the shoes of the deceased parent to protect and = maintain=20 the children's family heritage. This argument overlooks the clear=20 constitutional directive that state interference should only occur = when=20 the health, safety, or welfare of a child is at risk. The issue we = address=20 does not involve a threat to the health, safety, or welfare of = children.=20 Unlike the statutes concerning inoculation or immunization, = sections=20 607(b)(1) and (b)(3) involve visitation and a parent's decision to = control=20 who may interact with his or her children. Additionally, the = United States=20 Supreme Court does not limit the fundamental right to make = decisions=20 concerning the care, custody, and control of children to decisions = made by=20 joint parents: "this Court's decisions have by now made plain = beyond the=20 need for multiple citation that a parent's desire for and right to = `the=20 companionship, care, custody, and management of his or her = children' is an=20 important interest that `undeniably warrants deference and, absent = a=20 powerful countervailing interest, protection.' " Stanley, 405 U.S. = at 651,=20 31 L. Ed. 2d at 558, 92 S. Ct. at 1212-13. To the contrary, the = United=20 States Supreme Court recently recognized the changing demographics = of the=20 average American family, including the increasing number of = single-parent=20 households. Troxel, 530 U.S. at 64, 147 L. Ed. 2d at 55, 120 S. = Ct. at=20 2059 ("In 1996, children living with only one parent accounted for = 28=20 percent of all children under age 18 in the United States"). We,=20 therefore, reject any argument that single parents are entitled to = less=20 constitutional liberty in decisions concerning the care, custody, = and=20 control of their children.
[44]	Although the appellate court examined the constitutionality of = section=20 607(b)(1) as applied to a single parent's decision to limit = grandparent=20 visitation, we are compelled to examine the overall constitutional = validity of the statute. We begin with the presumption that a fit = parent's=20 decision to deny or limit visitation is in the child's best = interests. See=20 Troxel, 530 U.S. at 68, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061 = ("there is=20 a presumption that fit parents act in the best interests of their=20 children"); see Parham, 442 U.S. at 602, 61 L. Ed. 2d at 118, 99 = S. Ct. at=20 2504; Lulay, 193 Ill. 2d 455.
[45]	" `The law's concept of the family rests on a presumption that = parents=20 possess what a child lacks in maturity, experience, and capacity = for=20 judgment required for making life's difficult decisions. More = important,=20 historically it has recognized that natural bonds of affection = lead=20 parents to act in the best interests of their children.' " Troxel, = 530=20 U.S. at 68, 147 L. Ed. 2d at 58, 120 S. Ct. at 2061, quoting = Parham, 442=20 U.S. at 602, 61 L. Ed. 2d at 118, 99 S. Ct. at = 2504.
[46]	In Troxel, a mother limited visitation between her children and = their=20 paternal grandparents, after the father of her children committed = suicide.=20 The paternal grandparents petitioned for visitation under a = Washington=20 state visitation statute, and the United States Supreme Court = examined the=20 constitutional validity of that statute. Ultimately, the Court = held that=20 the statute was unconstitutional because it allowed "any third = party=20 seeking visitation to subject any decision by a parent concerning=20 visitation of the parent's children to state-court review." = (Emphasis=20 added.) Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57, 120 S. Ct. at = 2061.=20 The statute was held unconstitutional because it was = "breathtakingly=20 broad." Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57, 120 S. Ct. at = 2061.
[47]	The Court also discussed a second statutory flaw: "the = Washington=20 statute places the best-interest determination solely in the hands = of the=20 judge." Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57, 120 S. Ct. at = 2061.=20 The Court criticized the considerable discretion the judge could = exercise=20 under the statute, stating that "it gave no special weight at all = to [the=20 mother's] determination of her daughters' best interests." Troxel, = 530=20 U.S. at 69, 147 L. Ed. 2d at 58, 120 S. Ct. at 2062. The = Washington=20 statute undermined the parent's fundamental right to make = decisions=20 regarding the care and custody of her child because the parent's = decision=20 regarding visitation was no longer presumed to be in the child's = best=20 interests. Troxel, 530 U.S. at 69-70, 147 L. Ed. 2d at 59, 120 S. = Ct. at=20 2062. Instead, that decision was debated by the parties to the = litigation=20 before a judge, with the parent placed on equal footing with those = seeking=20 visitation privileges. Troxel, 530 U.S. at 69, 147 L. Ed. 2d at = 58, 120 S.=20 Ct. at 2062. In making visitation decisions, however, the parent = is not on=20 equal footing with those seeking visitation = privileges.
[48]	"In an ideal world, parents might always seek to cultivate the = bonds=20 between grandparents and their grandchildren. Needless to say, = however,=20 our world is far from perfect, and in it the decision whether such = an=20 intergenerational relationship would be beneficial in any specific = case is=20 for the parent to make in the first instance. And, if a fit = parent's=20 decisions of the kind at issue here becomes subject to judicial = review,=20 the court must accord at least some special weight to the parent's = own=20 determination." Troxel, 530 U.S. at 70, 147 L. Ed. 2d at 59, 120 = S. Ct. at=20 2062.
[49]	The Court did not reject the significance of the relationship = between=20 grandparents and their grandchildren; it simply acknowledged the=20 presumption that a parent's decision regarding visitation is in = the=20 children's best interest.
[50]	Section 607(b)(1) contains a similar flaw to the statute at = issue in=20 Troxel. Section 607(b)(1) permits grandparents, = great-grandparents, or the=20 sibling of any minor child visitation if "the court determines = that it is=20 in the best interests and welfare of the child." 750 ILCS = 5/607(b)(1)=20 (West 2000). Like the statute in Troxel, section 607(b)(1), in = every case,=20 places the parent on equal footing with the party seeking = visitation=20 rights. Further, like the statute in Troxel, section 607(b)(1) = directly=20 contravenes the traditional presumption that parents are fit and = act in=20 the best interests of their children. The statute allows the = "State to=20 infringe on the fundamental right of parents to make child rearing = decisions simply because a state judge believes a `better' = decision could=20 be made." Troxel, 530 U.S. at 72-73, 147 L. Ed. 2d at 61, 120 S. = Ct. at=20 2064. Section 607(b)(1) exposes the decision of a fit parent to = the=20 unfettered value judgment of a judge and the intrusive = micro-managing of=20 the state. Because we can conceive of no set of circumstances = under which=20 section 607(b)(1) of the Act would be valid, we hold that it is=20 unconstitutional on its face. For the same reasons, we hold that = section=20 607(b)(3) is facially unconstitutional.
[51]	Our holding does not depart from the previous decision of this = court=20 in Lulay. In Lulay, we held that section 607(b)(1) was = unconstitutional as=20 applied to the parents' joint decision to deny or limit = visitation. Lulay,=20 193 Ill. 2d at 479-80. Our decision rested upon the principle that = parents=20 maintain an established fundamental liberty interest in making = decisions=20 regarding the care, custody, and control of their children. Lulay, = 193=20 Ill. 2d 455. We declined to address facial invalidity merely = because the=20 issue was "outside the scope of the certified question." Lulay, = 193 Ill.=20 2d at 480. Yet, importantly, we recognized the presumption that = fit=20 parents act in the best interest of their children. Lulay, 193 = Ill. 2d at=20 479. In the instant matter, we are expressly asked to consider = whether the=20 statute is invalid on its face.
[52]	Furthermore, our holding does not disregard the value of a = meaningful=20 relationship between a grandparent and grandchild. In most cases, = the=20 relationship between a child and his or her grandparents is a = nurturing,=20 loving relationship that provides a vital connection to the = family's=20 history and roots. However, as with all human relationships, = conflicts may=20 arise between a child's parents and grandparents. In many cases, = this=20 conflict will concern disagreements about how a parent is raising = his or=20 her children. Yet, this human conflict has no place in the = courtroom. This=20 is true even where the intrusion is made in good conscience, such = as the=20 request for visitation to preserve the child's only connection to = a=20 deceased parent's family. Parents have the constitutionally = protected=20 latitude to raise their children as they decide, even if these = decisions=20 are perceived by some to be for arbitrary or wrong reasons. The=20 presumption that parents act in their children's best interest = prevents=20 the court from secondguessing parents' visitation decisions. = Moreover, a=20 fit parent's constitutionally protected liberty interest to direct = the=20 care, custody, and control of his or her children mandates that=20 parents-not judges-should be the ones to decide with whom their = children=20 will and will not associate.
[53]	CONCLUSION
[54]	For the foregoing reasons, we hold that sections 607(b)(1) and=20 607(b)(3) of the Act are facially unconstitutional. For this = reason, we=20 need not address the appellate court's holding that section = 607(b)(1) is=20 unconstitutional as applied. We affirm the judgment of the = appellate court=20 in Langman, No. 92135, and reverse the order of the trial court in = Wickham, No. 92048.
[55]	No. 92048-Reversed.
[56]	No. 92135-Affirmed.
[57]	JUSTICE GARMAN, concurring in part and dissenting in=20 part:
[58]	When this court last considered the constitutionality of this = statute,=20 three justices would have found the statute unconstitutional on = its face.=20 Lulay, 193 Ill. 2d at 480-82 (Heiple, J., specially concurring); = Lulay,=20 193 Ill. 2d at 482-83 (Rathje, J., specially concurring, joined by = Heiple=20 and Freeman, JJ.) (concluding that the statute is facially=20 unconstitutional because the "fatal flaw *** will be present in = every=20 section 607(b)(1) case" (emphasis omitted)). Thus, at the time = this court=20 considered Lulay, we were aware that each subsection of section = 607(b) was=20 vulnerable to the same criticism-that the state lacked a = compelling=20 interest to justify this significant intrusion into the decision = making of=20 fit parents. The majority reaches the question left unanswered in = Lulay,=20 whether the entire section must be found unconstitutional on its = face, and=20 answers that question in the affirmative.
[59]	A statute is facially unconstitutional if " ` "no set of = circumstances=20 exists under which the Act would be valid." ' " In re R.C., 195 = Ill. 2d=20 291, 297 (2001), quoting In re C.E., 161 Ill. 2d 200, 210-11 = (1994),=20 quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d = 697,=20 707, 107 S. Ct. 2095, 2100 (1987). I agree with the majority that = section=20 607(b)(3) is unconstitutional on its face. This provision states = that when=20 one parent has died, the surviving parent "shall not interfere" = with the=20 grandparents' rights to visitation. 750 ILCS 5/607(b)(3) (West = 2000).=20 Because a fit parent is constitutionally entitled to the = presumption that=20 he or she is acting in the child's best interest (Troxel, 530 U.S. = at=20 69-70, 147 L. Ed. 2d at 59, 120 S. Ct. at 2062), this provision, = which=20 purports to limit the decisionmaking capability of a fit parent in = order=20 to protect "rights" of grandparents, without first requiring = rebuttal of=20 the presumption, is unconstitutional on its = face.
[60]	Section 607(b)(1), however, is another matter. While this = section=20 defines a rather narrow class of persons who may bring petitions = for=20 visitation-grandparents, great-grandparents, and siblings-it does = not=20 limit the class of persons who may be named respondents in such = actions.=20 750 ILCS 5/607(b)(1) (West 2000). Logically, any person who = exercises=20 guardianship or custody over a minor child might be named a = respondent in=20 a petition for visitation brought pursuant to this section. Thus, = it is=20 easily possible to conceive of a set of circumstances in which = this=20 section could be validly applied. See slip op. at = 10.
[61]	Consider, for example, the case of a young family involved in a = tragic=20 automobile accident that kills the father and leaves the mother so = severely injured that her parents seek and are given custody and=20 guardianship of the child. Perhaps blaming their late son-in-law = for the=20 accident, the maternal grandparents refuse to permit visitation = with the=20 paternal grandparents. Section 607(b)(1)(C) confers standing upon = the=20 paternal grandparents to seek visitation by filing a petition = naming the=20 maternal grandparents as respondents. 750 ILCS 5/607(b)(1)(C) = (West 2000).=20 Yet, by declaring the statute unconstitutional on its face, the = majority=20 has implicitly held that the custodial grandparents in this = example have=20 the same fundamental rights to the care, custody, and control of = the child=20 as natural or adoptive parents, that they are constitutionally = entitled to=20 the benefit of the presumption that they are acting in the best = interests=20 of the child, and that the state may not interfere in their = decisionmaking=20 unless the interference is narrowly tailored to meet a compelling = state=20 interest. This implicit holding, moreover, has implications far = beyond=20 visitation disputes.
[62]	In my opinion, when the respondent in the visitation action is a = non-parent, the statute could be constitutionally applied because = the=20 non-parent respondent would not be exercising a fundamental = constitutional=20 right and, thus, strict scrutiny would not apply. In other words, = unlike a=20 natural or adoptive parent, a non-parent custodian or guardian is = not=20 constitutionally entitled to the presumption that he or she is = acting in=20 the best interest of the child. Without necessarily concluding = that=20 section 607(b)(1), as applied to non-parent respondents, meets the = rational basis test, I am unwilling to prejudge this issue by = finding this=20 provision unconstitutional on its face.
[63]	The majority is inclined to resolve the constitutional question = once=20 and for all so that piecemeal litigation is not required to = invalidate the=20 statute. However, by declaring this section facially invalid, the = majority=20 has implicitly declared that non-parent custodians or guardians = have=20 fundamental constitutional rights equal to those of parents. This = question=20 was not presented by either of the consolidated cases, nor was it = briefed=20 or argued. There is no need for the court to go so = far.
[64]	On the other hand, a good reason exists for narrowing our = holding to=20 declaring the statute unconstitutional as applied. At some future = date, a=20 non-parent custodian or guardian will stand before an Illinois = court=20 asserting a fundamental constitutional right to the care, custody, = and=20 control of a child and demanding the benefit of the presumption. = That=20 litigant will cite this case as support and we may, at that time, = have to=20 undo what was done here.
[65]	I firmly believe that we should go only so far as is necessary = to=20 resolve the question presented to us in the present case and no = further.=20 I, therefore, respectfully dissent from the portion of the opinion = that=20 would declare section 607(b)(1) unconstitutional on its face. I = would find=20 this provision unconstitutional as applied to any fit=20 parent.

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