NO. 5-07-0256
NOTICE Decision f iled 02/04 / 08. The text of this d ecision may be cha n g ed or c orrected p rior to the filing of a P e t i ti o n for Rehearing or th e
IN THE APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________ In re G RANDPARENT VISITATION O F CHINA PFALZGRAF, a Minor ) Appeal from the ) Circuit Court of ) Madison County. (Cynthia Pfalzgraf and Roger Pfalzgraf, ) ) P etitioners-Appellants, ) ) v. ) No. 07-F-137 ) D eann McCann, ) Honorable ) Duane L. Bailey, Respondent-Appellee). ) Judge, presiding. ________________________________________________________________________ JUSTICE W EXSTTEN delivered the opinion of the court: T h e p etitioners, Cynthia and Roger Pfalzgraf, appeal from the circuit court's ord e r entered o n their petition for grandparent v isitation (750 ILCS 5/607 (West 2006)). F or the reasons that follow, we affirm. BACKGROUND China P falzgraf is the minor daughter o f Michael Pfalzgraf and the r espondent, Deann McCann. M ichael and the respondent are divorced, and the respondent is C hina's custodial parent. The petitioners are China's paternal grandparents. On F ebruary 27, 2007, t he petitioners filed a petition for grandparent visitation with China pursuant to section 607 of the Illinois M arriage and Dissolution of M arriage Act (Act) (750 I LCS 5/607 (West 2006)). The p etition, w hich stated, inter alia , that Michael did not object to his parents' request, sought "extensive visitation" with China. On April 1 1, 2007, the parties' attorneys advised the circuit court that the parties were in a greement that the petitioners should have visitation with China but that the parties 1
disposition of the same.
disagreed w ith regard to when that visitati on should occur. The petitioners wanted the proposed v isitation to occur d uring the respondent's custody t ime because they did not want to dim inish Michae l's visitation time with China, but the respondent did not want the petit ioners' v isitation time to diminish her custody time. Counsel directed the court's attention t o section 607 of the Act and, in particular, to subsection (a-5)(1)(B), which provides, in pertinent part, as foll ows: "The v isitation of the grandparent *** must not diminish t he visitation of the parent who is not related to the grandpar ent *** seeking visitation[.]" 750 ILCS 5/607(a-5)(1)(B) (West 2 006). After r eviewing section 607 of the Act, the circuit court directed counsel to p repare the following order, which the court entered the same day: "Cause comes on for hearing on petition for grandparent visitation. Parties agree that grandparent visitation herein s hould be allowed. H owever, Mother m aintains that g randparent visitation should not d iminish her custodial time with the minor child. Mother cites [section 607(a-5)(1)(B)] in support o f her position. Said provision s tates that 'The visitation of the grandparent ... must not diminish t he visitation of the parent who is n ot related to the grandparent ... seeking visitation.['] Wherefore, the Court orders that the grandparents s hall be a llowed visitation but said visitation shall take place during their son's visitation and shall n ot diminish the time during which the Mother currently has the minor child." The petitioners subsequently filed a timely notice of appeal. ANALYSIS The p etitioners argue that the c ircuit court " improperly conflated the terms 'visitation' and 'custody' " when the c ourt concluded that subsection (a-5)(1)(B)'s directive that "[t]he visitation of the grandparent * ** m ust not diminish the visitation of the parent who is not related t o the grandparent *** seeking visitation" (750 ILCS 5/607(a-5)(1)(B) ( West 2006))
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precluded it from orderi ng that th eir requested visitation occur during the respondent's custody t ime. The petitioners maintain that the directive was enacted to "prevent a court from reducing the time that a noncustodial parent will h ave with his or her child" and should be interpreted accordingly. T he resp ondent counters that the circuit court correctly
interpreted subsection (a-5)(1)(B)'s directive to mean that "[t]he parent who is unrelated to the p arty requesting visitation rights does not have to give up their time w ith the c hild to allow [grandparent] visitation." The interpretation o f a statute is a question of law, for which t he standard of review is d e novo , and the "primary objective is to a scertain and give effect to legislative intent, the surest a nd most reliable indicator of which is the statutory language itself, given its plain and ordinary m eaning." P eople v. P erry , 2 24 Ill. 2d 312, 323 (2007). Section 607 of the Act refers to both " custody" and " visitation," while subsection (a-5)(1)(B)'s directive that "[t]he visitation o f the grandparent * ** must not diminish the visitation of the parent who is not related t o the grandparent *** seeking visitation" refers only to t he latte r (750 ILCS 5/607(a-5)(1)(B) ( West 2006)). Thus, given its language's p lain and ordinary meaning, the directive only precludes a court from granting grandparent visitation that diminishes the unrelated p arent's v isitation t ime. If w e w ere to adopt the petitioners' p roposed interpretation of subsection (a-5)(1)(B), we would have to ignore t hat, as written, its directive only precludes the diminishment of the unrelated parent's visitation. If w e w ere to adopt the respondent's proposed interpretation, we would h ave to read the phrase "the visitation of the parent" as "the visitation or custody time o f the parent." U nder the circumstances, we are unable to adopt either proposed interpretation. " We cannot read words into a statute that are not there" (Chicago Tribune Co. v. Board of Education of the City o f Chicago, 332 Ill. A pp. 3d 60, 67 (2002)), nor can we "ignore the plain language of the statute and t he intent of the l egislature" (Rita v. Mayden,
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364 Ill. App. 3d 913, 918 (2006)). As previously stated, by its p lain terms, subsection (a5)(1)(B) only precludes a court from grantin g gr andparent visitation that diminishes the unrelated p arent's v isitation t ime. In the p resent case, the petition for visitation was brought by the grandparents who are related to the parent with visitation, and subsection (a-5)(1)(B)'s directive r egarding the unrelated p arent's visitation t ime is thus inapplicable. Nevertheless, "[a]s a reviewing court, w e can sustain the decision of the circuit court o n any grounds which are c alled for by the record regardless of whether t he circuit court relied o n the grounds and regardless o f whether the circuit court's reasoning was sound." City o f Chicago v . Holland, 206 Ill. 2d 480, 492 (2003). Section 6 07 of the Act provides a mechanism by which a minor child's grandparents may p etition the court for visitation u nder certain circumstances. L ulay v . Lulay, 193 Ill. 2d 455, 4 74 (2000). As with any visitation decision, t he overriding concern in a p roceeding on a petition f or grandparent visitation is the best interests of the c hild. W eybright v. Puckett, 262 Ill. App. 3d 605, 608 (1994). It i s presumed that "a fit parent's decision to deny or limit [grandparent] visitation is in t he child's best interests." W ickham v. Byrne , 1 99 Ill. 2d 309, 318 (2002). This presumption is reflected in section 607(a-5)(3) of the Act (Flynn v . Henkel, 227 Ill. 2 d 176 (2007), No. 103946, slip op. at 5-6 (November 29, 2007)), which provides, in pertinent part, as follows: "[T]here i s a rebuttable presumption tha t a fi t parent's actions and decisions regarding grandparent *** v isitation are not harmful to the child's mental, physical, or e motional health. T he burden is on the party filing a petition under this Section to prove t hat the parent's actions and decisions regarding v isitation times are harmful to the child's mental, physical, or e m otional health." 750 ILCS 5/607(a-5)(3) (West 2006).
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Here, the respondent, as C hina's custodial parent, advised that she did not w ant the petitioners' v isitation time to diminish her custody time. It is presumed that the respondent's decision i s "not harmful to [China's] mental, physical, or emotional health" (750 I LC S 5/607(a-5)(3) ( West 2006)) and is in China's best interests (Byrne , 199 Ill. 2d at 3 1 8). Pursuant to subsection (a-5)(3), it was therefore i ncumbent upon the petitioners t o prove that the respondent's decision regarding the v isitation is h armful to China's mental, physical, or emotional h ealth. See H enke l , slip op. at 5-6. The petitioners made no attempt to do so, however, a nd merely maintained that they did not w ant their visitation time with China to diminish M ichael's visitation time . We also note that the petitioners do not argue that the present c ause should be remanded so that they can have the opportunity to prove that the respondent's d ecision regarding the v isitation is harmful to China's mental, physical, or emotional h ealth. By failing to rebut the presumption set forth in subsection (a-5)( 3), the peti tioners f ail ed to provide the circuit court with a valid basis upon which to grant their request t hat the visitation o ccur during the respondent's custody time. Cf. H enkel, slip op. at 8 ( reversing the circuit court's order granting grandparent vi sitation where the court's "unsupported o ral pronouncement that [the] petitioner had met her burden of p roof i n overcoming the statutory presumption that [t he cu stodial parent's] decision denying grandparent v isitation was n ot harmful t o [the minor child's] mental, physical[,] or emotional health [was] against the manifest weight of the evidence"). A ccordingly, we affirm the circuit court's o rder denying the petitioners' request that t heir visitation time occur during the respondent's custody time. C ONCLUSION For the foregoing reasons, th e judgment of the circuit court of Madison County is affirmed.
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Affirmed.
GOLDENHERSH and DONOVAN, JJ., concur.
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N O. 5-07-0256 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ___________________________________________________________________________________ ) Appeal from the ) Circuit Court of ) Madison County. (Cynthia Pfalzgraf and Roger Pfalzgraf, ) ) P etitioners-Appellants, ) ) v. ) No. 07-F-137 ) D eann McCann, ) Honorable ) Duane L. Bailey, Respondent-Appellee). ) Judge, presiding. ___________________________________________________________________________________ Opinion Filed: February 4, 2008 ___________________________________________________________________________________ Justices: Honorable James M. Wexstten, J., In re G RANDPARENT VISITATION O F CHINA PFALZGRAF, a Minor
H onorable Richard P. Goldenhersh, J., H onorable James K. Donovan, J., Concur ___________________________________________________________________________________ Attorney Kevin A. Polo, Law Office of Kevin A. Polo, J.D., 207 North Macoupin, for Gillespie, IL 62033-1470 Appellants ___________________________________________________________________________________ Attorney Charles H. Stegmeyer, Stegmeyer & Stegmeyer, 100 South Charles Street, Suite 1, for Belleville, IL 62220 Appellee ___________________________________________________________________________________
