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U.S. Supreme Court

In Troxel, the State of Washington's case involved an appeal from the Court of Appeals. The biological mother of two children had custody, with the father regularly visiting with the children and bringing them to visit his parents. After the father committed suicide, the grandparents tried to secure unlimited visitation rights with the grandchildren under a Washington statute allowing people other than a child's parents to petition for visitation rights. Their request was met with opposition by the surviving biological mother, who wanted to limit the visitation of the children with the grandparents to once per month. The U.S. Supreme Court ruled that the Washington statute, under which the grandparents were petitioning, was unconstitutional when it allowed "any person to petition the Court for visitation at any time, including but not limited to custody proceedings when such a ruling would serve the child's best interest."

Illinois Supreme Court

In Lulay, decided by the Illinois Supreme Court, divorced parents joined forces in denying the paternal grandmother visitation rights with the parties' three children. The grandmother filed an action against her own son and former daughter-in-law for those rights. In response, the mother and father together filed a single motion to dismiss the petition. The trial court denied the parent's motion, and the Illinois Appellate Court denied the parents' right to appeal. The biological father, who was a lawyer handling his own case, requested the trial court to certify the question directly to the Illinois Supreme Court, and requested the Supreme Court to answer whether Section 607 of the Illinois Marriage and Dissolution of Marriage Act should be interpreted to permit a trial court to conduct a hearing to determine whether it is in the best interest of a child to visit with a grandparent, when it is opposed by the child's parents. The Illinois Supreme Court, in a very well reasoned and legally supported decision, said "no" to such a hearing.

Unfortunately, the majority opinion went on to limit their decision to the facts of the Lulay case, leaving them open to possibly having to decide "yes" in some future case with a different fact pattern, and rule that a trial court can conduct a hearing on what is in the child or children's best interest.

The Illinois Supreme Court ruled that Section 607 (b)(1) of the Act, which "permits a grandparent to file a Petition for Visitation where the grandparent's own child, i.e. the parent of the grandchildren objects to the visitation between the grandparent and the grandchild," is constitutional. The court allowed it to stand, but went on to say that Section 607, as applied to the facts in Lulay, was an "unconstitutional infringement on Michael and Kiley Lulay's fundamental liberty and interest in raising their children," and sent the case back to the trial court with directions to dismiss the grandmother's petition for visitation.

So, where does that leave grandparent's visitation rights in those states where the statutes grant those rights? The only true answer is, it all depends on the facts of each case.

The best interest of the child rule, and the rights of parents to raise their children and make decisions for them, versus states' rights to infringe on the parent's rights by deciding what is in the child's best interest, makes the current state of grandparents visitation rights confusing and unpredictable. The last chapter of this current dilemma is yet to be written.

Herbert A. Glieberman is a family lawyer in Chicago, IL, and a member of the USLaw.com Affiliate Network. He can be reached at 19 South LaSalle Street, Suite 600, Chicago, IL 60603-1402, email: hglieber@aol.com