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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)
Fundamental Right
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."
The 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
case-the
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
the
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
it
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.
Encompassed
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
decisionmaking function of parents with respect to the relationships that their
children will have. This decisionmaking 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 right.
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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