specially concurring:
I agree with the decision to reverse the trial court on grounds of unconstitutionality. However, the majority fails to settle the issue of grandparental visitation under our statute. The majority finds that section 607(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(l) (1998) is unconstitutional as applied to this case’s particular set of facts. This leaves open the possibility that other grandparents, under a slightly different set of facts, might successfully petition for grandparent visitation under section 607. Section 607, however, should be deemed unconstitutional on its face.
In Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), a mother in the State of Washington tried to limit visitation after the father of her children committed suicide. The paternal grandparents responded by petitioning for visitation. The United States Supreme Court noted that, under the grandparent visitation statute in effect in Washington, “a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.” (Emphasis in original.) Troxel, 530 U.S. at 67, 147 L. Ed. 2d at 57-58, 120 S. Ct. at 2061. The Court went on to state that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Troxel, 530 U.S. at 72-73, 147 L. Ed. 2d at 61, 120 S. Ct. at 2064.
The statute at issue in this case, section 607, states in pertinent part that:
“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 ***. *** [A] petition for visitation privileges may be filed under this paragraph if one or more of the following circumstances exist:
* * sjs
(C) one of the parents is deceased[.]” 750 ILCS 5/607(b)(l)(C) (West 1996).
Thus, under section 607, if one parent dies, a grandparent can petition for visitation, which can be granted if the court finds that visitation is in the best interests of the child. This case is simply Troxel by a different name and is precisely the remedy the Supreme Court held unconstitutional. The rationale of Troxel clearly points to a ruling that section 607 be held unconstitutional on its face. Accordingly, I respectfully specially concur.