# Flynn v. Henkel

> Appellate Court of Illinois · November 27, 2006 · 307 Ill. Dec. 386

URL: https://www.frixlaw.com/law-library/cases/9860065

## Case

- **Full name:** CINDY FLYNN, Petitioner-Appellee, v. ALICE HENKEL, Respondent-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** November 27, 2006
- **Citations:** 307 Ill. Dec. 386; 369 Ill. App. 3d 328; 859 N.E.2d 1063; 2006 Ill. App. LEXIS 1097
- **Precedential status:** Published
- **Opinion:** Dissent by Kapala
- **Judges:** McLaren, Kapala
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Flynn v. Henkel, 227 Ill. 2d 176 (2007).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9860065

## Opinion text

JUSTICE KAPALA, dissenting:
Because I believe that the trial court abused its discretion when it granted petitioner visitation with E.H. (see McVey, 226 Ill. App. 3d at 1083-84), I respectfully dissent. Section 607(a — 5)(3) of the Illinois Marriage and Dissolution of Marriage Act places the burden on a petitioner for grandparent visitation to “prove that the parent’s actions and decisions regarding visitation times are harmful to the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a — 5)(3) (West Supp. 2005). The majority concludes that the harm E.H. would suffer from a denial of visitation with his paternal grandmother can be inferred from the evidence. I disagree.
The majority states that, if petitioner were denied visitation with E.H., “E.H. would be harmed by never knowing a grandparent who loved him and who did not undermine the child’s relationship with his mother.” 369 Ill. App. 3d at 335. However, I find no evidence in the record to show how E.H. would react to a lack of visitation with his grandmother. I believe section 607(a — 5) (3) requires a petitioner for grandparent visitation to show direct harm to a child beyond the general idea that any child would be disadvantaged by a denial of visitation with a grandparent who loves him. Consequently, I do not agree that petitioner has met her burden in this case.
The burden placed on petitioner by section 607(a — 5)(3) is best understood in light of our supreme court’s decision in Wickham, 199 Ill. 2d 309 . In Wickham, our supreme court found the former statute granting grandparent visitation (750 ILCS 5/607(b)(l), (b)(3) (West 2000)) unconstitutional. Wickham, 199 Ill. 2d at 320-21 . The Wickham court held that the statute interfered with parents’ fourteenth amendment right to the care, custody, and control of their children because it failed to accord some special weight to a fit parent’s determination of her child’s best interest. Wickham, 199 Ill. 2d at 317 . While the court recognized that the state may interfere with a parent’s right to the care, custody, and control of her child to protect the health, safety, or welfare of the child, it found no compelling interest in the case before it that would justify such an intrusion on this right. Wickham, 199 Ill. 2d at 317 . In fact, in Wickham, our supreme court compared other instances when a child’s health, welfare, and safety had justified the state’s intrusion. These instances included required testing for phenylketonuria at birth, required immunization for diphtheria, required hearing and visual examinations, and prohibited child labor. Wickham, 199 Ill. 2d at 317 .
Following the Wickham decision, the legislature enacted section 607(a — 5) (3), which placed the burden on a petitioner for grandparent visitation to rebut the presumption that a parent’s actions regarding visitation are not harmful to the child’s health, and to prove that the parent’s decisions regarding visitation times are harmful to the child’s health. 750 ILCS 5/607(a — 5)(3) (West Supp. 2005). These provisions address the flaws in the previous statute raised by the Wickham court and place on a petitioning grandparent the burden to show such harm to a child that would justify the state’s intrusion on a parent’s constitutional rights.
In this case, not only has petitioner failed to present any evidence to show that a lack of visitation will result in harm to E.H.’s mental, physical, or emotional health, but even the trial court commented in its finding that “the harm in this case is not something that you can put in the sense of a direct emotional harm.” Petitioner presented no evidence about E.H.’s level of attachment to her, E.H.’s reaction to the cessation of visitation, or E.H.’s overall emotional, mental, and physical health. Although these factors are surely not the only factors to consider when deciding if harm to the child would occur, they demonstrate some evidence a petitioner may present to meet her burden under section 607(a — 5) (3). In this case, the only evidence of the potential effect of a lack of visitation on E.H. was petitioner’s testimony that E.H. “hugs me, he holds me” when he sees her. This alone does not show that E.H. would be harmed by his mother’s decision to deny visitation with his paternal grandmother.
Moreover, if the harm referred to in section 607(a — 5) (3) includes the general proposition that any child is harmed by his parent’s refusal to allow visitation with a grandparent who loves him and does not undermine the child’s relationship with his parent, the breadth of the statute would conflict with the holdings of Wickham. Wickham, 199 Ill. 2d at 317 (“The issue we address does not involve a threat to the health, safety, or welfare of children. Unlike the statutes concerning inoculation or immunization, sections 607(b)(1) and (b)(3) involve visitation and a parent’s decision to control who may interact with his or her children”). In light of Wickham, I believe the showing of harm required by section 607(a — 5)(3) is a requirement that a petitioner present evidence that the particular child will be physically, emotionally, or mentally harmed by his parent’s visitation decisions, and is not a general idea that any child is harmed by a lack of visitation with any grandparent who loves him.
Because the evidence presented to the trial court in this case did not offer any insight into the effect on E.H. of the denial of petitioner’s visitation, the trial court’s decision to grant petitioner visitation would result in manifest injustice. See McVey, 226 Ill. App. 3d at 1083-84. Consequently, I believe the trial court abused its discretion when it found that petitioner met her burden of showing the denial of petitioner’s visitation with E.H. would cause E.H. physical, emotional, or mental harm. As she failed to show any harm to E.H., petitioner failed to fulfill the requirements of section 607(a — 5)(3). Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9860065. Public record. Not legal advice.