Docket No. 103946.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
CINDY FLYNN, Appellee, v. ALICE HENKEL, Appellant.
Opinion filed November 29, 2007.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
Alice Henkel is a single mother raising a minor child, E.H., who
was born on May 27, 2003. Cory Flynn is the father of E.H. Alice and
Cory were never married and never lived together. Alice and E.H. live
with E.H.’s maternal grandparents. Cindy Flynn is Cory’s mother and
the paternal grandmother of E.H.
Cindy filed a petition in the circuit court of Lee County for
grandparent visitation against Alice in December 2005 under section
607(a–5) of the Illinois Marriage and Dissolution of Marriage Act
(750 ILCS 5/607(a–5) (West 2006)), commonly called the
grandparents visitation statute. The court held a hearing on the
petition on April 21, 2006. Following the hearing, the court allowed
the visitation, providing for three hours of unsupervised visitation on
the second Saturday of each month with certain restrictions. Alice
appealed and the appellate court affirmed. 369 Ill. App. 3d 328. We
granted leave to appeal (210 Ill. 2d R. 315) and reverse the appellate
court and the trial court for the reasons that follow.
BACKGROUND
The hearing on Cindy’s petition was held on April 21, 2006,
pursuant to the grandparent visitation statute, which in pertinent part
provides:
“(a–5)(1) Except as otherwise provided in this subsection
(a–5), any grandparent, great-grandparent, or sibling may file
a petition for visitation rights to a minor child if there is an
unreasonable denial of visitation by a parent and at least one
of the following conditions exists:
***
(E) the child is born out of wedlock, the parents are
not living together, and the petitioner is a paternal
grandparent, great-grandparent, or sibling, and the
paternity has been established by a court of competent
jurisdiction.
***
(3) In making a determination under this subsection (a–5),
there is a rebuttable presumption that a fit parent’s actions and
decisions regarding grandparent, great-grandparent, or sibling
visitation are not harmful to the child’s mental, physical, or
emotional health. The burden is on the party filing a petition
under this Section to prove that the parent’s actions and
decisions regarding visitation times are harmful to the child’s
mental, physical, or emotional health.” 750 ILCS 5/607(a–5)
(West 2006).
All the evidence in this case was presented through the testimony
of Alice, Cindy and E.H.’s maternal grandmother at that hearing.
Cindy first learned of E.H.’s birth one month after he was born. She
and her husband visited E.H. at the home of E.H.’s maternal
grandparents that same night. The parties agreed to visit once a week
and, after a few weeks, arranged to visit twice a month for two hours.
Although the record is not clear as to when Cory went to prison or if
he was in prison at the time of E.H.’s birth, he was released from
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prison in July of 2003, at which time Alice would not allow Cory to
see E.H. Alice told Cindy that she and her husband could see E.H., if
they kept Cory out of E.H.’s life. Cindy and her husband abided by
this condition. Cory later filed a petition to obtain visitation with his
son. Cindy testified that “when Alice got her papers from the court,
she called me in a rage. She cussed me out and told me that I lost my
visitation with [E.H.]” Cory was later granted supervised visitation at
Sinnissippi, a community-based behavioral health-care center. Cindy
testified that the visitation order stated that Cindy could not see E.H.
without Cory. (The petition, order and report of proceedings in
Cory’s visitation proceeding are not part of the record in this case.)
Eventually, Cory and Alice agreed to have the supervised visits at
Alice’s house. Cindy attended the visitations at Sinnisssippi, but she
did not attend the visitations at Alice’s house.
Cory left for California in September of 2005. Cindy contacted
Alice and requested visitation with E.H. without Cory. Alice refused
this request and Cindy filed her petition for visitation in December
2005. There was no visitation between Cindy and E.H. from May
2005 until Cindy filed her petition. After the petition for visitation was
filed, Alice and Cindy agreed to a trial visitation period that lasted for
two visits each in January and in February 2006. When no further
agreement could be reached, the visitation petition was set for hearing
and, as previously noted, was heard on April 21, 2006. No motion
attacking the sufficiency of the allegations in the petition and no
answer to the petition was ever filed by Alice.
At the close of the evidence and arguments, the trial court stated:
“Okay. Based on the testimony presented the Court finds
that the petitioner has met her burden. The harm in this case
is not something that you can put in the sense of a direct
emotional harm. It’s a direct denial of an opportunity that
every grandparent according to this statute is entitled to.”
The trial court then specifically addressed each of the statutory factors
enumerated in sections 607(a–5)(4)(A) through (a–5)(4)(J) in
deciding in favor of visitation.
In its written order granting visitation, the trial court did not make
any specific findings as to how Cindy had overcome the statutory
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presumption that Alice’s decisions regarding grandparent visitation
were not harmful to E.H.’s mental, physical, or emotional health.
Alice argued in the appellate court that Cindy failed to prove that
denying grandparent visitation was harmful to E.H.’s mental, physical,
or emotional health, as required by section 607(a–5)(3) of the Act.
The appellate court rejected this argument and stated:
“The harm that E.H. would suffer if there were no
visitation can be inferred from the evidence. As the trial court
stated, it ‘is not something that you can put in the sense of a
direct emotional harm.’ However, Cindy’s love for E.H. is
manifest in the record. She tried to become involved with
Alice even before E.H. was born and sent items for the baby.
She came to visit E.H. the very night that she learned that he
had been born. As Cindy said, ‘I just want to be part of
[E.H’s] life. He deserves it and I deserve it.’ If Cindy were
denied visitation, E.H. would be harmed by never knowing a
grandparent who loved him and who did not undermine the
child’s relationship with his mother. There was no evidence
that the prior visitation interfered with Alice’s relationship
with E.H., and the evidence showed that Cindy would abide
by any restrictions that the court placed on future visitation .
We can find no error in the trial court’s finding that Alice’s
denial of visitation was harmful to E.H.’s mental, physical, or
emotional health ***.” (Emphasis added.) 369 Ill. App. 3d at
335.
The dissenting justice stated that “if the harm referred to in section
607(a–5)(3) includes the general proposition that any child is harmed
by his parent’s refusal to allow visitation with a grandparent who
loves him and does not undermine the child’s relationship with his
parent, the breadth of the statute would conflict with the holdings of
Wickham.” 369 Ill. App. 3d at 357 (Kapala, J., dissenting), citing
Wickham v. Byrne, 199 Ill. 2d 309, 317 (2002). He would find that
Cindy failed to show any harm to E.H. by the denial of her visitation
and she therefore failed to fulfill the requirements of section
607(a–5)(3).
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STANDARD OF REVIEW
The presumption established in section 607(a–5)(3) that a fit
parent’s denial of a grandparent’s visitation is not harmful to the
child’s mental, physical, or emotional health is the embodiment of the
fundamental right of parents to make decisions concerning the care,
custody, and control of their children which is protected by the
fourteenth amendment. See Wickham v. Byrne, 199 Ill. 2d 309 (2002).
Section 607(a–5)(3) places the burden on the party filing the visitation
petition to prove that the parent’s actions and decisions regarding
visitation times are harmful to the child’s mental, physical, or
emotional health. A trial court’s determination that a fit parent’s
decision regarding whether grandparent visitation is or is not harmful
to the child’s mental, physical, or emotional health will not be
disturbed on review unless it is contrary to the manifest weight of the
evidence. See In re Gwynne P. v. Detra W., 215 Ill. 2d 340, 354
(2005).
ANALYSIS
Alice argues, in this court as she did in the appellate court, that
Cindy failed to prove that denying visitation was harmful to E.H.’s
mental, physical or emotional health, as required by section
607(a–5)(3). Section 607(a–5)(3) was added after we held the former
grandparent visitation statute (see 750 ILCS 5/607(b)(1) (West
2000)) unconstitutional in Wickham and is best understood in light of
the holdings therein. The former grandparent visitation statute
provided in pertinent part:
“The court may grant reasonable visitation privileges to a
grandparent, great-grandparent, or sibling of any minor child
upon petition to the court by the grandparents or great-
grandparents or on behalf of the sibling, *** if the court
determines that it is in the best interests and welfare of the
child, and may issue any necessary orders to enforce such
visitation privileges.” 750 ILCS 5/607(b)(1) (West 2000).
In determining the constitutionality of this former statute, we
stated, “We begin with the presumption that a fit parent’s decision to
deny or limit visitation is in the child’s best interests.” (Emphasis in
original.) Wickham, 199 Ill. 2d at 318 (citing Troxel v. Granville, 530
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U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), Parham v. J.R.,
442 U.S. 584, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979), and Lulay v.
Lulay, 193 Ill. 2d 455 (2000)). We then found the former grandparent
visitation statute unconstitutional because it gave no special weight to
this presumption. We stated:
“Section 607(b)(1) permits grandparents, great-grandparents,
or the sibling of any minor child visitation if ‘the court
determines that it is in the best interests and welfare of the
child.’ 750 ILCS 5/607(b)(1) (West 2000). Like the statute in
Troxel, section 607(b)(1), in every case, places the parent on
equal footing with the party seeking visitation rights. Further,
like the statute in Troxel, section 607(b)(1) directly
contravenes the traditional presumption that parents are fit and
act in the best interests of their children. *** Section
607(b)(1) exposes the decision of a fit parent to the unfettered
value judgment of a judge and the intrusive micromanaging of
the state.” Wickham, 199 Ill. 2d at 320.
After the former grandparent statute was held unconstitutional in
Wickham, the legislature enacted section 607(a–5)(3), establishing “a
rebuttable presumption that a fit parent’s actions and decisions
regarding grandparent *** visitation are not harmful to the child’s
mental, physical, or emotional health” and placing the burden on the
grandparent “to prove that the parent’s actions and decisions
regarding visitation times are harmful to the child’s mental, physical,
or emotional health.” 750 ILCS 5/607(a–5)(3) (West 2006).
Alice argues that the trial court and the appellate court each
applied the “best interests of the child” standard of the former
grandparent visitation statute in finding that Cindy had overcome the
presumption, and carried the burden, established in section
607(a–5)(3). She states that the trial and appellate courts engaged in
a balancing of facts “for” and “against” grandparent visitation based
on the assumption that grandparent-grandchild relationships will
almost always benefit the child. It is argued that under this
assumption, since a child can only benefit from a relationship with a
loving grandparent then, of necessity, the denial of that relationship
constitutes harm.
In Lulay v. Lulay, 193 Ill. 2d 455 (2000), this court held that
section 607(b)(1) of the former grandparent visitation statute (750
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ILCS 5/607(b)(1) (West 2000)) was unconstitutional as applied to the
facts of that case. In determining whether the statute met the strict
scrutiny test, this court considered the generalizations, advanced by
the parties, as to whether grandparent visitation is beneficial to the
children. Lulay, 193 Ill. 2d at 476-78. The Attorney General of Illinois
was permitted to intervene in that case to defend the constitutionality
of section 607(b)(1).
This court first noted: “The State cites the decision in West v.
West, 294 Ill. App. 3d 356, 364 (1998), which, in upholding the facial
validity of section 607(b)(1), reasoned that the state ‘has a compelling
interest in maintaining and safeguarding an established grandparent-
grandchild relationship where it has been proven by the grandparent
that it is in the best interest of the child for the relationship to
continue.” Lulay, 193 Ill. 2d at 476. The State cited legislative history
of the former grandparent visitation statute and the court quoted from
several state Representatives that the purpose of the legislation was
the opportunity of continuing a relationship between grandparents and
grandchildren in dissolution cases. Lulay, 193 Ill. 2d at 476-77. This
court next stated: “In contrast, the parents cite decisions from other
jurisdictions that question the premise that grandparent visitation is
always beneficial to the child.” Lulay, 193 Ill. 2d at 477. In
conclusion, this court said, “Generalizations about whether
grandparent visitation is beneficial to the children are not
determinative of this case.” Lulay, 193 Ill. 2d at 478.
Although Cindy testified that E.H. loves her and that he hugs her
and holds her when he sees her, she did not present any evidence to
show that denial of visitation with her would result in harm to E.H.’s
mental, physical, or emotional health. The only evidence pertaining to
harm E.H. would experience from the denial of visitation with his
grandmother came from Alice, who was asked, “Do you believe it
would be harmful for E.H. not to see Cindy Flynn and visit with her?”
and she answered “No.”
It is clear that the trial court, in its oral pronouncement at the
conclusion of the April 21 hearing and contrary to the appellate
court’s interpretation of that pronouncement, found there was no
“direct emotional harm” to E.H. in Alice’s decision to deny visitation
to Cindy. Rather, the trial court clearly stated that the harm is “a direct
denial of an opportunity that every grandparent according to this
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statute is entitled to.” Neither denial of an opportunity for grandparent
visitation, as the trial court found, nor a child “never knowing a
grandparent who loved him and who did not undermine the child’s
relationship with his mother,” as the appellate court held, is “harm”
that will rebut the presumption stated in section 607(a–5)(3) that a fit
parent’s denial of a grandparent’s visitation is not harmful to the
child’s mental, physical, or emotional health. Cf. Lulay v. Lulay, 293
Ill. 2d at 476-78.
Based on the record before us we find that the trial court’s
unsupported oral pronouncement that petitioner had met her burden
of proof in overcoming the statutory presumption that Alice’s
decisions denying grandparent visitation was not harmful to E.H.’s
mental, physical or emotional health is against the manifest weight of
the evidence.
CONCLUSION
For the reasons set forth above, the judgments of the appellate
court and the trial court are reversed.
Reversed.
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