{ "id": 3599789, "name": "In re MARRIAGE OF DEBORAH L. ROSS, Petitioner-Appellant, and SCOTT A. ROSS, Respondent-Appellee", "name_abbreviation": "In re Marriage of Ross", "decision_date": "2005-02-16", "docket_number": "No. 5\u201403\u20140613", "first_page": "1162", "last_page": "1171", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 1162" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "344 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777197 ], "year": 2003, "pin_cites": [ { "page": "349", "parenthetical": "Slater, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0345-01" ] }, { "cite": "319 Ill. App. 618", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5649273 ], "year": 1943, "pin_cites": [ { "parenthetical": "the father was stationed away in the armed forces" } ], "opinion_index": 0, "case_paths": [ "/ill-app/319/0618-01" ] }, { "cite": "330 Ill. App. 506", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3409499 ], "year": 1947, "pin_cites": [ { "parenthetical": "the father died and the grandparents were trustees" } ], "opinion_index": 0, "case_paths": [ "/ill-app/330/0506-01" ] }, { "cite": "14 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2681509 ], "year": 1973, "pin_cites": [ { "parenthetical": "the mother died" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0602-01" ] }, { "cite": "95 L. Ed. 2d 697", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6222105, 1148012 ], "year": 1987, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/us/481/0739-01", "/us/341/0001-01" ] }, { "cite": "481 U.S. 739", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6222105 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "745" }, { "page": "2100" } ], "opinion_index": 0, "case_paths": [ "/us/481/0739-01" ] }, { "cite": "161 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783189 ], "year": 1994, "pin_cites": [ { "page": "210-11", "parenthetical": "a statute is facially unconstitutional if \" 'no set of circumstances exists under which the Act would be valid,' \" quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987)" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0200-01" ] }, { "cite": "342 Ill. App. 3d 560", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472762 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "564-65" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0560-01" ] }, { "cite": "351 Ill. App. 3d 148", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083870 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "150" }, { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0148-01" ] }, { "cite": "213 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448318 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "115" }, { "page": "116" }, { "page": "116-17", "parenthetical": "the order allowing grandparent visitation merely gave effect to the parent's own wishes" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0105-01" ] }, { "cite": "183 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209971 ], "year": 1998, "pin_cites": [ { "page": "354", "parenthetical": "technical defects in pleadings should not prevent courts from doing justice between parties" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0342-01" ] }, { "cite": "241 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2436599 ], "year": 1993, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0500-01" ] }, { "cite": "266 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887214 ], "year": 1994, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0408-01" ] }, { "cite": "246 Ill. App. 3d 628", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5386579 ], "year": 1993, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0628-01" ] }, { "cite": "51 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3384008 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "872" }, { "page": "872-73" }, { "page": "872", "parenthetical": "the court did not abuse its discretion in requiring the appellant to deliver the children to the former husband's home and call for them at the completion of each visitation period" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0868-01" ] }, { "cite": "229 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5217587 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1027" }, { "page": "1027", "parenthetical": "the court did not abuse its discretion when it ordered the father to pick up the child in the mother's hometown rather than a town closer to the father's home" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/1023-01" ] }, { "cite": "21 Ill. App. 3d 1032", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5376395 ], "year": 1974, "pin_cites": [ { "page": "1037", "parenthetical": "the payor spouse acted in good faith because his efforts to better his academic bargaining position had commenced five years before his request and the university imposed a condition for the payor spouse to obtain his degree or forfeit five years of effort and a note with interest" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/1032-01" ] }, { "cite": "212 Ill. App. 3d 85", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2599656 ], "year": 1991, "pin_cites": [ { "page": "95-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0085-01" ] }, { "cite": "251 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2962618 ], "year": 1993, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0138-01" ] }, { "cite": "191 Ill. App. 3d 685", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509940 ], "year": 1989, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0685-01" ] }, { "cite": "272 Ill. App. 3d 472", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 253205 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "476" }, { "page": "476" }, { "page": "476-77" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0472-01" ] }, { "cite": "199 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58935 ], "weight": 6, "year": 2002, "pin_cites": [ { "page": "322", "parenthetical": "\"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\"" }, { "page": "317" }, { "page": "317-18" }, { "page": "322", "parenthetical": "grandparent visitation statute was facially unconstitutional" }, { "page": "317-18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0309-01" ] } ], "analysis": { "cardinality": 899, "char_count": 21919, "ocr_confidence": 0.696, "pagerank": { "raw": 4.304828124825895e-08, "percentile": 0.2712810669656802 }, "sha256": "1ca290885926fbe7dc593b2845bf6fb3ea683bb4e06f7ea520c8cc4bb8c7367b", "simhash": "1:3197a5ff6e08d227", "word_count": 3493 }, "last_updated": "2023-07-14T21:57:27.413698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF DEBORAH L. ROSS, Petitioner-Appellant, and SCOTT A. ROSS, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE HOPKINS\ndelivered the opinion of the court:\nThe petitioner, Deborah L. Ross, filed a petition to modify her child support obligation and her visitation privileges with the parties\u2019 two minor children, MacKenzie, born September 6, 1993, and Megan, born March 27, 1997. On appeal, Deborah argues that the circuit court erred in refusing to modify her child support obligation, in declining to order visitation privileges to her parents, in determining the place of the exchange for the children\u2019s visitation, and in reducing her visitation with the children.\nWe affirm.\nFACTS\nOn September 5, 2000, the circuit court entered its judgment for the dissolution of the parties\u2019 marriage. In its judgment, the circuit court designated the respondent, Scott A. Ross, as the custodial parent for MacKenzie and Megan, ordered Deborah to pay child support of $440 per month, and awarded Deborah visitation pursuant to the following schedule: (1) every other weekend from Friday at 6 p.m. to Sunday at 6 p.m., (2) holidays during alternating years, (3) Mother\u2019s Day, (4) one week in June, July, and August, for a total of three weeks, and (5) one half of Christmas vacation and any extended spring break period. On February 2, 2001, the court amended its order to allow Deborah the following additional visitation: (1) every Wednesday from 4:30 p.m. to 8 p.m., (2) one additional week in June, for a total of two weeks in June, and (3) one additional week in July, for a total of two weeks in July.\nOn May 30, 2003, Deborah filed a petition to modify visitation and child support. In the petition, Deborah alleged that she was moving to Indianapolis, Indiana, and she requested that the court modify the visitation schedule and establish procedures for transporting the children for visitation. Deborah further alleged that she had changed employment, which resulted in a substantial change in circumstances, and she requested that the circuit court modify her child support obligation. In his response, Scott requested that the court deny Deborah\u2019s petition to reduce her child support obligation because Deborah had quit her employment without appropriate cause or justification.\nOn August 18, 2003, at the hearing on Deborah\u2019s petition to modify visitation and child support, Deborah testified that she had moved to Indianapolis, Indiana, approximately seven weeks before the hearing. Deborah testified that she had been previously employed by North American Lighting in Salem, Illinois, earning approximately $12.40 per hour and working from 7 a.m. to 4 p.m. Deborah testified that she had also worked at Farm Fresh, where she earned $6.25 per hour and worked from 4:30 p.m. to 10 p.m. Deborah testified that in 2002, she earned $28,000 from North American Lighting and $7,000 from Farm Fresh.\nDeborah testified that she had worked at North American Lighting for 15 years when she resigned her position on June 13, 2003. Deborah testified that from October 1994 through June 2003, she had not been promoted at North American Lighting and did not see a future prospect for advancement at North American Lighting or at Farm Fresh. Deborah testified that she sought employment in Marion County but was unsuccessful. Deborah testified that although she considered St. Louis and Springfield in her search for new employment, she did not send resumes to employers located in St. Louis or Springfield.\nDeborah testified that she moved to Indianapolis because of its additional opportunities and because of the continuing strife between her and Scott. Deborah also testified that she was dating a gentleman who lived in Indianapolis. Deborah testified that she was unemployed from June 13, 2003, to July 13, 2003, but that on July 13, 2003, she began working as an administrative assistant for Crane America, earning $11 per hour. Deborah testified that she considered her current employment as a transition job while she sought other employment. Deborah testified that she would not seek a second job because she planned to attend one of the many universities located within 30 minutes of her home in Indianapolis to obtain a bachelor\u2019s degree in social work or business.\nDeborah testified that the driving time between Salem and her Indianapolis home was approximately 272 hours. Deborah testified that the halfway point between Salem and Indianapolis was Terre Haute at exit seven on Interstate 70. Deborah testified that after moving to Indianapolis, she visited the children on the weekends but was unable to visit them on Wednesdays because of the distance involved. Deborah testified that the relationship between her parents and her children was good, although her parents only visited upon Deborah\u2019s initiative because Scott did not allow visitation between her parents and the children. Deborah testified that she wanted her parents to exercise her Wednesday visitation.\nScott testified that when Deborah lived in Marion County, she exercised her weekend and Wednesday visitation. Scott testified that when Deborah moved to Indianapolis, she exercised her visitation during the summer, and the children missed two to three weeks of swimming lessons, ball games, and bible school. Scott testified that since Deborah\u2019s move to Indianapolis, he did not facilitate visitation with Deborah\u2019s parents because they never asked to visit the children. Scott testified that he worked the night shift at North American Lighting in Salem on Sunday through Thursday, from 10:30 p.m. to 6:30 a.m., but that on Sunday evenings, he often began at 6:30 p.m. for the start-up shift.\nAfter the hearing, the circuit court found that Deborah left the job in which she had worked for 15 years to move to Indianapolis, away from her parents and her children, relinquishing a good-paying job and Wednesday night visits. The circuit court characterized Deborah\u2019s testimony concerning her plans for future education as vague and uncertain. The circuit court characterized Deborah\u2019s explanation for choosing Indianapolis, i.e., job advancement, as not credible in light of similar, and closer, opportunities in Springfield or St. Louis. The circuit court also noted that due to a modification of the new guidelines, Deborah\u2019s support obligation would be modestly reduced in any event. The circuit court encouraged Scott to allow visitation with Deborah\u2019s parents but declined to order it in light of recent holdings of the Illinois Supreme Court. See Wickham v. Byrne, 199 Ill. 2d 309 (2002).\nIn its September 4, 2003, order, the circuit court held that Deborah\u2019s change in employment had not been made in good faith, and the court denied Deborah\u2019s request to decrease her child support obligation. The circuit court granted Deborah\u2019s request to modify visitation and awarded Deborah the following visitation:\n1. The first and third weekends of every month, from 7:30 p.m. on Friday until 4:30 p.m. on Sunday.\n2. Labor Day weekend, Columbus Day weekend, Martin Luther King Day weekend, Presidents\u2019 Day weekend, and Easter weekend, from Friday at 7:30 p.m. until Monday at 4:30 p.m.\n3. Thanksgiving weekend, from Thanksgiving Day at 4 p.m. until Sunday at 4:30 p.m.\n4. From Christmas Day at 4 p.m. until December 30 at 4:30 p.m.\n5. Fourteen consecutive days after school is completed for summer break.\n6. Twenty-one days at the end of summer prior to school commencement for the fall semester.\nThe court ordered that the parties exchange the children in Effing-ham, Illinois.\nOn October 3, 2003, Deborah filed her timely notice of appeal.\nANALYSIS\nDeborah\u2019s Petition to Modify Child Support\nDeborah argues that the circuit court erred in finding that her job change had not been made in good faith and in refusing to modify her child support obligation.\nThe decision to grant or deny a petition to modify an award for child support lies within the sound discretion of the circuit court, and this court will not disturb the circuit court\u2019s decision on appeal absent an abuse of discretion. In re Marriage of Horn, 272 Ill. App. 3d 472, 476 (1995).\nThe circuit court\u2019s order for child support may be modified upon a showing of a substantial change in circumstances. 750 ILCS 5/510(a) (West 2002). \u201cA good-faith, voluntary change in employment which results in diminished financial ability may constitute a substantial change in circumstances justifying a reduction in child support payments. [Citation.]\u201d In re Marriage of Horn, 272 Ill. App. 3d at 476. The crucial consideration, to determine if a decision was made in good faith, is whether the change was prompted by a desire to evade financial responsibilities for supporting the children or to otherwise jeopardize their interests. In re Marriage of Hardy, 191 Ill. App. 3d 685, 690 (1989). \u201cThe party seeking the modification must present evidence of a motive, other than evasion of financial responsibilities for support of the children, in support of the petition for modification. [Citation.]\u201d In re Marriage of Horn, 272 Ill. App. 3d at 476-77; In re Marriage of Imlay, 251 Ill. App. 3d 138, 142 (1993). \u201cUnless good faith is shown, a voluntary termination of employment by a supporting spouse is not considered a material change in circumstances sufficient to warrant abatement or modification of support obligations. [Citation.]\u201d In re Marriage of Dall, 212 Ill. App. 3d 85, 95-96 (1991).\nThe evidence demonstrated that Deborah left a higher-paying job to move 2xk hours away from her children, to move away from her parents, to accept a lower-paying, transition job, and to consider pursuing her education in an undecided field at an undecided college. Although relief has been granted to a payor spouse who leaves his employment to pursue his education (Graham v. Graham, 21 Ill. App. 3d 1032, 1037 (1974) (the payor spouse acted in good faith because his efforts to better his academic bargaining position had commenced five years before his request and the university imposed a condition for the payor spouse to obtain his degree or forfeit five years of effort and a note with interest)), the circuit court found that Deborah\u2019s expressed desires to continue her education were vague, inconclusive, and not credible. The circuit court also found that Deborah\u2019s expressed motive regarding the opportunities available in Indiana was not credible because Deborah failed to seek employment in St. Louis or Springfield, which were located close by and offered similar opportunities. Deborah failed to present credible evidence of a motive, other than the evasion of financial responsibilities for the support of the children, to sustain her petition for a modification. We find that the circuit court did not abuse its discretion in finding that Deborah\u2019s change of employment had not been made in good faith.\nDeborah\u2019s Visitation\nDeborah argues that the circuit court abused its discretion in directing the parties to exchange the children in Effingham and in reducing Deborah\u2019s weekend visitation \u2014 reducing the number of visitation weekends in a year and reducing the number of hours during each weekend by three. We disagree.\nVisitation orders will not be disturbed on appeal absent an abuse of discretion. Kocal v. Holt, 229 Ill. App. 3d 1023, 1027 (1992); Doggett v. Doggett, 51 Ill. App. 3d 868, 872 (1977). \u201cThe court may modify visitation rights if, due to a change in circumstances, it appears reasonable and proper to do so and if the best interests of the child make it advisable. [Citations.]\u201d Doggett, 51 Ill. App. 3d at 872-73.\nTo support her argument, Deborah cites section 607(a) of the Illinois Marriage and Dissolution of Marriage Act, which provides:\n\u201cA parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child\u2019s physical, mental, moral[,] or emotional health.\u201d 750 ILCS 5/607(a) (West 2002).\nA restriction of visitation, which must meet the serious-endangerment standard, is an action that limits, restrains, or confines visitation; for example, a termination of visitation, a prohibition on overnight visitation, or a requirement of supervised visitation. In re Marriage of Lee, 246 Ill. App. 3d 628, 645 (1993). A reduction of weekend and summer visitation is not considered a restriction of visitation. In re Marriage of Wycoff, 266 Ill. App. 3d 408, 416 (1994); In re Marriage of LaTour, 241 Ill. App. 3d 500, 504 (1993).\nThe circuit court did not abuse its discretion in modifying Deborah\u2019s visitation schedule. The circuit court awarded Deborah visitation during the first and third weekends of every month from 7:30 p.m. on Friday until 4:30 p.m. on Sunday, various three-day holiday weekends from 7:30 p.m. on Friday until 4:30 p.m. on Monday, Thanksgiving weekend and Christmas week, and a total of five weeks during the children\u2019s summer vacation. The circuit court\u2019s award of visitation to Deborah was unrestricted and was certainly reasonable in light of Deborah\u2019s voluntary, out-of-state move, the additional driving distance involved, and Scott\u2019s work schedule.\nThe circuit court also did not abuse its discretion in directing the parties to exchange the children in Effingham, Illinois, which is located between Indianapolis and Salem, as opposed to Deborah\u2019s requested exchange point in Terre Haute, Indiana. See Kocal, 229 Ill. App. 3d at 1027 (the court did not abuse its discretion when it ordered the father to pick up the child in the mother\u2019s hometown rather than a town closer to the father\u2019s home); Doggett, 51 Ill. App. 3d at 872 (the court did not abuse its discretion in requiring the appellant to deliver the children to the former husband\u2019s home and call for them at the completion of each visitation period). We affirm the circuit court\u2019s order modifying Deborah\u2019s visitation privileges.\nGrandparent Visitation\nDeborah argues that the circuit court erred in refusing to order grandparent visitation with her parents. In her petition to modify, Deborah failed to include a request for grandparent visitation in the prayer for relief. However, the failure to obtain leave to add a prayer for relief against a party already before the court is not a jurisdictional defect. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 354 (1998) (technical defects in pleadings should not prevent courts from doing justice between parties). We choose to address the issue.\nIn Wickham v. Byrne, the Illinois Supreme Court held that sections 607(b)(1) and 607(b)(3) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(l), (b)(3) (West 2000)), providing for court-ordered grandparent visitation privileges, were facially unconstitutional because the statute violated a parent\u2019s due process right to make decisions concerning the care, custody, and control of his child without unwarranted state intrusion. Wickham v. Byrne, 199 Ill. 2d 309, 322 (2002) (\u201ca fit parent\u2019s constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents \u2014 not judges \u2014 should be the ones to decide with whom their children will and will not associate\u201d). The court stated that state interference with fundamental parental child-rearing rights is justified only in limited instances to protect the health, safety, and welfare of children, such as required testing and immunizations for children and the prohibition against child labor. Wickham, 199 Ill. 2d at 317. The court held that grandparent visitation does not involve a threat to the health, safety, or welfare of children and that, therefore, the state\u2019s interference with fundamental parental child-rearing rights was not justified. Wickham, 199 Ill. 2d at 317-18.\nThereafter, in In re M.M.D., the Illinois Supreme Court held that although the constitution prohibits the state from forcing fit parents to yield visitation rights to a child\u2019s grandparents when the parents do not wish to do so, there is no corresponding constitutional prohibition against a fit parent\u2019s decision to voluntarily bestow visitation privileges on his child\u2019s grandparents. In re MM.D., 213 Ill. 2d 105, 115 (2004). The court held, \u201cThe constitutional protections afforded parenthood therefore obligate the courts to uphold voluntary visitation agreements made by fit parents, not declare them invalid.\u201d In re M.M.D., 213 Ill. 2d at 116. Accordingly, because the father had entered into a voluntary visitation agreement with the deceased mother\u2019s parents, the court held that, despite its prior decision in Wickham, the consent decree was not void and unenforceable as a matter of law. In re M.M.D., 213 Ill. 2d at 116-17 (the order allowing grandparent visitation merely gave effect to the parent\u2019s own wishes).\nIn the present case, Deborah and Scott have not entered into a voluntary agreement granting visitation privileges to Deborah\u2019s parents. Instead, Deborah argues that the circuit court should have ordered grandparent visitation pursuant to the common law that existed before the unconstitutional grandparent visitation statute was enacted. We disagree.\nWhether court-ordered grandparent visitation is allowed, pursuant to the common law that existed prior to the enactment of the unconstitutional grandparent visitation statute, is disputed. Beurksen v. Graff, 351 Ill. App. 3d 148 (2004); In re Marriage of Sullivan, 342 Ill. App. 3d 560 (2003). In In re Marriage of Sullivan, the Second District Appellate Court held that, despite the unconstitutionality of the grandparent visitation statute, the noncustodial father had the right to petition the court to modify his visitation rights so that his family could visit his son while he served in the military overseas. In re Marriage of Sullivan, 342 Ill. App. 3d at 564-65. The court held that the common law prior to the enactment of the unconstitutional statute would have allowed the father\u2019s parents to visit his child in his absence because of the \u201cspecial circumstances.\u201d In re Marriage of Sullivan, 342 Ill. App. 3d at 565. The court distinguished Wickham, stating that because the father, as opposed to a grandparent, had petitioned the court for grandparent visitation, the case did not require a judge to decide the best interests of a child between a fit parent and a nonparent but, instead, involved the trial court\u2019s weighing of the wishes of two fit parents to determine the child\u2019s best interests. In re Marriage of Sullivan, 342 Ill. App. 3d at 565.\nThe grandparent visitation statute that Wickham held was facially unconstitutional authorized the court to order visitation privileges to a grandparent when \u201cone of the parents joins in the petition with the grandparents.\u201d 750 ILCS 5/607(b)(l)(D) (West 2000). We therefore fail to reconcile the court\u2019s distinction in In re Marriage of Sullivan with the Illinois Supreme Court\u2019s declaration in Wickham, that no set of circumstances existed under which the statute could validly authorize a court to order grandparent visitation against a parent\u2019s wishes because that court-ordered visitation would violate a parent\u2019s constitutionally protected liberty interest to direct the care, custody, and control of his children without unwarranted state intrusion. Wickham, 199 Ill. 2d at 322 (grandparent visitation statute was facially unconstitutional); In re C.E., 161 Ill. 2d 200, 210-11 (1994) (a statute is facially unconstitutional if \u201c \u2018no set of circumstances exists under which the Act would be valid,\u2019 \u201d quoting United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987)).\nThe special circumstances for which the common law authorized the courts to order grandparent visitation (Boyles v. Boyles, 14 Ill. App. 3d 602 (1973) (the mother died); Lucchesi v. Lucchesi, 330 Ill. App. 506 (1947) (the father died and the grandparents were trustees); Solomon v. Solomon, 319 Ill. App. 618 (1943) (the father was stationed away in the armed forces)) were similar to those circumstances delineated in the statute that Wickham declared to be unconstitutional. 750 ILCS 5/607(b) (West 2000) (visitation is allowed if a parent is deceased, if one of the parents joins in the petition with the grandparents, or if the parents are not cohabiting on a permanent or an indefinite basis). We are inclined to agree with the First District Appellate Court in Beurksen, 351 Ill. App. 3d 148. In Beurksen, the court cited with approval Justice Slater\u2019s appellate court dissent in In re M.M.D., which stated that court-ordered grandparent visitation infringed upon the parent\u2019s fundamental right to raise his child and could not be retroactively legitimized by reliance on resurrected common law principles. Beurksen, 351 Ill. App. 3d at 150 (relying on In re M.M.D., 344 Ill. App. 3d 345, 349 (2003) (Slater, J., dissenting)).\nThe statute authorizing the court to order grandparent visitation privileges, against a parent\u2019s wishes, was declared unconstitutional (Wickham, 199 Ill. 2d at 317-18), and the prior common law that authorized the same is equally unconstitutional. In the present case, unlike In re M.M.D., we do not have a consent decree that voluntarily bestows visitation privileges to the children\u2019s grandparents. We cannot, therefore, under the guise of the common law, authorize that which the supreme court has declared unconstitutional. See Beurksen, 351 Ill. App. 3d at 150. Accordingly, the circuit court properly denied Deborah\u2019s request for grandparent visitation.\nCONCLUSION\nFor the foregoing reasons, the judgment of the circuit court of Marion County is affirmed.\nAffirmed.\nWELCH and CHAPMAN, JJ., concur.", "type": "majority", "author": "JUSTICE HOPKINS" } ], "attorneys": [ "C. Stephen Swofford, of Campbell, Black, Camine, Hedin, Ballard & McDonald, EC., of Mt. Vernon, for appellant.", "Jay J. Zanton, of Law Office of Jay J. Zanton, of Centraba, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF DEBORAH L. ROSS, Petitioner-Appellant, and SCOTT A. ROSS, Respondent-Appellee.\nFifth District\nNo. 5 \u2014 03\u20140613\nOpinion filed February 16, 2005.\nC. Stephen Swofford, of Campbell, Black, Camine, Hedin, Ballard & McDonald, EC., of Mt. Vernon, for appellant.\nJay J. Zanton, of Law Office of Jay J. Zanton, of Centraba, for appellee." }, "file_name": "1162-01", "first_page_order": 1180, "last_page_order": 1189 }