Illinois Court Upholds Parental Rights

Published October 1, 2002

Saying the law violates the due process rights of a surviving parent, the Illinois Supreme Court in April struck down a state statute giving grandparents the right to sue for visitation rights to their grandchildren when one parent is deceased. This aspect of the law had remained an open question after the court ruled in 2000 that the law was unconstitutional when both parents were alive.

The case, Wickham v. Byrne, involved consolidated cases in which a surviving parent was at odds with grandparents of the deceased parent over visitation. Under the Illinois Marriage and Dissolution of Marriage Act, a court is permitted to grant visitation to a grandparent when one parent is deceased, if doing so is in the best interest of the child. In this case, two trial court decisions had assigned the grandparents more visitation with the child than the surviving parent wished to grant.

The Supreme Court ruled the statute violated the parent’s due process rights because it “places the parent on equal footing with the party seeking visitation rights” and “contravenes the traditional presumption that parents are fit and act in the best interests of their children.”

The Court ruled a parent’s due process rights were violated by the statute because it “exposes the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micromanagement of the state.”

The Court recognized parents and grandparents can both have the best interests of the child at heart, but also that “a fit parent’s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents—not judges—should be the ones to decide with whom their children will and will not associate.”

This ruling provides strong support for parents’ rights, and makes the point that some disputes are not for government and judges to decide.

Steven R. Merican is a lawyer whose practice concentrates on individual liberty issues. His email address is [email protected], and his Web site is at

For more information

The Illinois Supreme Court decision in Wickham v. Byrne, Docket Nos. 92048, 92135 (4/18/02) is available on the Internet at