# In Re Marriage of Mehring

> Appellate Court of Illinois · August 13, 2001 · 324 Ill. App. 3d 262

URL: https://www.frixlaw.com/law-library/cases/9541373

## Case

- **Full name:** In Re MARRIAGE OF MICHAEL MEHRING, Petitioner, and JULIE MEHRING, Respondent-Appellant (Ella Mehring, Intervenor-Appellee)
- **Court:** Appellate Court of Illinois
- **Decided:** August 13, 2001
- **Citations:** 324 Ill. App. 3d 262; 258 Ill. Dec. 28; 755 N.E.2d 109; 2001 Ill. App. LEXIS 640
- **Precedential status:** Published
- **Opinion:** Concurrence by Goldenhersh
- **Judges:** Chapman, Goldenhersh
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541373

## Opinion text

JUSTICE GOLDENHERSH, specially concurring:
I concur in the result reached by my colleagues in the majority opinion. However, I have two points of disagreement.
The first part of the majority’s opinion analogizes litigation in the family area, such as that of the instant case, to a form of warfare. Unfortunately, such comparisons foster an image of unprincipled, unlimited, and bitter combat as the norm in family matters. While such litigation does, in fact, occur at times, the responsible practitioner will counsel litigants to put the interests of their children ahead of their own emotions, desires, and feelings of anger and hurt. Likewise, a responsible judge faced with one of these heart-rendering decisions will separate the consideration of the best interests of the children from a bitter clash of the parents. Most important, responsible parents who are guided by responsible counseling by our domestic relations bar will make responsible decisions in the best interests of their children, putting aside any feelings of hurt, anger, or passion for revenge. The worst possible fate for minor children caught in the maelstrom of a custody or visitation fight is to be used as pawns in a litigation game or to be used as swords to injure the opposing party. The analogy to warfare in this context is contrary to the best interests of children.
My second point of contention with the majority opinion focuses on what I believe is a misreading of Troxel v. Granville, 530 U.S. 57 , 147 L. Ed. 2d 49 , 120 S. Ct. 2054 (2000). Troxel is an important case with immense repercussions in the domestic relations area (see Lulay v. Lulay, 193 Ill. 2d 455 , 739 N.E.2d 521 (2000)). The majority analyzes Troxel correctly in noting that it does not require that a court make a finding of harm before it grants grandparental visitation and similarly does not require that a court make a finding of unfitness before it orders such visitation over parental objections. I disagree with the majority, however, in its distillation of the basis of Troxel into an inaccurate syllogism.
The majority poses the fitness test in Troxel as follows:
“• All fit parents always make decisions that are in the best interests of their children.
• Granville is a fit parent.
• Therefore, Granville always makes decisions that are in the best interests of her children.
***
*** The problem with the Troxel fitness test is that the major premise claims too much; it is simply not true that fit parents always make decisions that are in the best interests of their children.” 324 Ill. App. 3d at 267.
The majority then proceeds to delineate examples.
This is not what Troxel says. As noted in the majority’s own earlier quotations from Troxel, the Supreme Court posed the fitness of parents as a presumption and not a given. The majority quotes Troxel as saying, “ ‘[Tjhere is a presumption that fit parents act in the best interests of their children’ ” (324 Ill. App. 3d at 267, quoting Troxel, 530 U.S. at 68 , 147 L. Ed. 2d at 58 , 120 S. Ct. at 2061 ), and further notes that Troxel was based on, among other things, “the fitness presumption” (324 Ill. App. 3d at 267). The Supreme Court in Troxel stated, “[T]he interest of parents in the care, custody, and control of their children[ ] is perhaps the oldest of the fundamental liberty interests recognized by this Court” ( 530 U.S. at 65 , 147 L. Ed. 2d at 56 , 120 S. Ct. at 2060 ), and the Troxel Court also stated, as quoted by the majority, that there is a presumption that fit parents act in the best interests of their children (324 Ill. App. 3d at 267; Troxel, 530 U.S. at 68 , 147 L. Ed. 2d at 58 , 120 S. Ct. at 2061 ). The Supreme Court later assessed the fundamental flaw in the superior court’s order:
“The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. [Citation.] In that respect, the court’s presumption failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.” (Emphasis added.) Troxel, 530 U.S. at 69-70 , 147 L. Ed. 2d at 59 , 120 S. Ct. at 2062 .
The Troxel Court clearly posed the major premise of its syllogism not as the majority states (“All fit parents always make decisions that are in the best interests of their children”) but in terms of a presumption. The Illinois Supreme Court similarly interpreted Troxel in Lulay:
“Next, looking at the facts of [Troxel], the Court noted that the grandparents did not allege, and no court has found, that the mother was an unfit parent. This point is pivotal because a court must presume that fit parents act in the best interests of their children.” (Emphasis added.) Lulay, 193 Ill. 2d at 462 , 739 N.E.2d at 525 , citing Troxel, 530 U.S. at 68 , 147 L. Ed. 2d at 58 , 120 S. Ct. at 2061 .
This is a distinction with a difference, because this presumption by its very nature is rebuttable and in the context of visitation litigation is a point that is more likely to be litigated than the general fitness or unfitness of the custodial parent; it puts at issue a best-interests analysis of a decision denying visitation, as opposed to the much more problematic question of the fitness of a particular parent. So that the inevitable litigation similar to the instant case may be appropriately conducted and resolved, it is important that the components and the implications of the Troxel decision are adequately and fully stated.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541373. Public record. Not legal advice.