Illinois visitation statute declared unconstitutional

Friday, November 30, 2001

DECATUR, Ill. -- A Macon County court ruling that rejected a woman's request to visit her grandchildren could open up the state's grandparent visitation law to further legal challenges.

Associate Circuit Court Judge Lisa White found the grandparent visitation statute to be unconstitutional on its face when she refused to grant a Belvidere woman the right to visit her two granddaughters.

David Meyer, a law professor at the University of Illinois, said the case could affect the future of grandparent visitation in Illinois.

The Macon County decision, reached earlier this month, sets a legal precedent that could be used to overturn previous grandparent visitation decisions. It also would become binding on all courts if the ruling were to be upheld by the state appellate court or the state Supreme Court.

"It opens the door to other challenges," Meyer said Thursday. "To the extent that it strikes down the visitation statute as altogether unconstitutional, that has implications for other cases and other families."

The Macon County case involved Tracy Gifford of Mount Zion, whose wife died in a 1996 car accident. Gifford's two daughters initially visited their maternal grandmother, Louise Leggs, but the visits stopped in 1998 when Leggs moved and Gifford remarried.

Illinois law

The Illinois visitation law allows grandparents to seek visits through the court in several instances, including when one parent has died.

The law says when one parent is dead, the surviving parent shall not interfere with the visitation rights of the grandparents.

Visitation was initially granted to Leggs in 1998. Gifford argued in May that the law puts the burden on parents to prove children should not visit and takes decisions away from parents.

White agreed with Gifford's arguments in her written order and said she was shown no "compelling state interest that justifies the abrogation of (Gifford's) fundamental rights with respect to his children."

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