The following is an exact quote from the Illinois Supreme Court summarizing decisions of the U.S. Supreme Court that are controlling upon ALL states. Grandparents’ and unwed fathers’ rights are also discussed below.
Lulay v Lulay 193 Ill. 2d 455 739 N.E. 2d 521 250 Ill. Dec 758 (DECIDED Oct 26, 2000)
The fourteenth amendment [***23] to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law."
due process clause "includes a substantive component that 'provides heightened
protection against government interference with certain fundamental rights and
liberty interests.' " Troxel, 530 U.S. at , 147 L. Ed. 2d at 56, 120 S. Ct.
at 2059-60, quoting Washington v. [**530] Glucksberg, 521
U.S. 702, 720, 138 L. Ed. 2d 772, 787, 117 S. Ct. 2258, 2267 (1997).
As the United States Supreme Court stated in Troxel, the "liberty interest at issue in this
interest of parents in the care, custody, and control of their children-is
perhaps the oldest of the fundamental liberty [*471]
interests recognized by this Court." Troxel, 530 U.S. at , 147 L. Ed. 2d at
56, 120 S. Ct. at 2060 (reviewing Court decisions that have recognized and
explained the fundamental interest of parents in the upbringing of their
children); accord People v. R.G., 131 Ill. 2d 328, 342-43, 137 Ill. Dec.
588, 546 N.E.2d 533 (1989) (upholding the constitutionality of the "Minors
Requiring Authoritative Intervention" [***24] statutes
(see Ill. Rev. Stat. 1987, ch. 37, par. 803-1 et seq.) and recognizing
that, under United States Supreme Court precedent, "parents have a liberty
interest in bearing and raising their children").
In Meyer v. Nebraska, 262 U.S. 390, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), the Court held unconstitutional a statute that prohibited the teaching of certain foreign languages at an elementary school. The Court reasoned that
due process clause protects the rights of parents to "establish a home and bring
up children" and "to control the education of their own." Meyer, 262
U.S. at 399, 401, 67 L. Ed. at 1045, 1046, 43 S. Ct. at 626, 627. Two years
later, in Pierce v. Society of the Sisters of the Holy Names of Jesus &
Mary, 268 U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), the Court held
unconstitutional a statute that required parents to send their children to
public schools, reasoning that the statute interfered with the liberty right of
parents "to direct the upbringing and education of children under their
control." The Pierce Court explained that the "child is not the mere
creature of the State; those who nurture [***25] him and
direct his destiny have the right, coupled with the high duty, to recognize and
prepare him for additional obligations." Pierce, 268 U.S. at 535, 69 L. Ed.
at 1078, 45 S. Ct. at 573.
Years later, the fundamental right of parents to raise their children remained an important focus in the jurisprudence of the United State Supreme Court. In Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 [*472] (1972), the Court held unconstitutional a statute that declared that, upon the death of the mother, children of unwed fathers became wards of the state. The Court reasoned: "The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' [Citation.]" Stanley, 405 U.S. at 651, 31 L. Ed. 2d at 558, 92 S. Ct. at 1212.
Soon after, in Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972), [***26] the Court held, albeit primarily on the basis of the 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 Court emphasized: "The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." Yoder, 406 U.S. at 232, 32 L. Ed. 2d at 35, 92 S. Ct. at 1541-42; see also Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394 (1982) (determining the standard of proof necessary in termination of parental rights case and noting the Court's "historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment"); Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 118, 99 S. Ct. 2493, 2504 (1979) (stating that "our jurisprudence historically has reflected [**531] Western civilization concepts of the family as a unit with broad parental authority [***27] over minor children"). In light of this extensive [*473] precedent, the Court in Troxel concluded that "
cannot now be doubted that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning the care,
custody, and control of their children." Troxel, 530 U.S. at , 147 L. Ed.
2d at 57, 120 S. Ct. at 2060.
Section 607(b)(1) allows grandparents to petition for court-ordered visitation with the grandchildren when both parents have decided not to allow such visitation. By allowing the State to interfere with the parents' decision in this regard, section 607(b)(1) impinges upon the fundamental constitutional right of parents to make decisions regarding the upbringing of their children.
The State and the grandmother, Gail Lulay, argue that, even if section 607(b)(1) impinges upon a fundamental right, the statute does not significantly interfere with the fundamental right, and therefore, we should apply the rational basis test in reviewing the constitutionality of section 607(b)(1). See R.G., 131 Ill. 2d at 343 (stating that only statutes that "significantly interfere" with a fundamental right [***28] are subject to strict scrutiny), citing Zablocki v. Redhail, 434 U.S. 374, 386-88, 54 L. Ed. 2d 618, 630-31, 98 S. Ct. 673, 681-82 (1978). The State contends that section 607(b)(1) does not give grandparents the absolute right to visitation. Rather, the statute merely creates a procedure by which grandparents may petition for visitation under certain circumstances. The State points out that section 607(b)(1) states only that a court "may grant reasonable visitation privileges" (emphasis added) ( 750 ILCS 5/607(b)(1) (West 1998)) and that the grandparents have the burden of proving that visitation is in the child's best interests and welfare.
In light of the nature of the fundamental right at stake, the State's and the grandmother's argument is not persuasive.
within the well-established fundamental right of parents to raise their children
is [*474] the right to determine with whom their
children should associate. See Hoff v. Berg, 1999 ND 115, 595 N.W.2d
285, 291 (N.D. 1999) (stating that "deciding when, under what conditions, and
with whom their children may associate is among the most important rights and
[***29] responsibilities of parents," in holding that its
most recent grandparent visitation statute was unconstitutional). It is the role
of parents to nurture their children and to influence and shape their children's
character. As the United States Supreme Court has recognized, "it is cardinal
with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S.
158, 166, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442 (1944). This "preparation for
obligation" includes the parents' determination of who will be instrumental in
the development of their child's personality and character. Section 607(b)(1)
allows the State to usurp the decision making function of parents with respect to
the relationships that their children will have. This decision making function
lies at the core of parents' liberty interest in the care, custody, and control
of their children. To hold that section 607(b)(1) is not a significant
interference with the fundamental right of parents to raise their children would
be to effectively obliterate that [***30] fundamental
The significant interference that section 607(b)(1) has on parents' fundamental right is further evidenced by the procedure contemplated by the statute. The grandparents may file a petition for visitation under certain circumstances; in this case, where the parents are divorced. The parent or parents are then haled into court. The parents must presumably hire attorneys, and then present evidence and [**532] defend their decision regarding the visitation before a trial court. The parents' authority over their children is necessarily diminished by [*475] this procedure. This can only be characterized as a significant interference with parents' fundamental right to make decisions regarding the upbringing of their children. Indeed,
the "burden of litigating a domestic relations proceeding can itself be 'so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated.' " Troxel, 530 U.S. at , 147 L. Ed. 2d at 62, 120 S. Ct. at 2065, quoting 530 U.S. at , 147 L. Ed. 2d at 78, 120 S. Ct. at 2079 (Kennedy, J., dissenting).
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