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Attorney Pirtle Published in Illinois State Bar Association's August Newsletter

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Attorney Pirtle has been published in the August 2013 edition of the Illinois State Bar Association's Family Law Section Council, of which Attorney Pucci has been a member for two years. Her article addresses a very recent Illinois Supreme Court case that effectively clarified, and in many jurisdictions changed, the standard for visitation by a non-custodial parent in parentage actions. It is an important read and the text of her article is below:

Illinois Supreme Court puts burden on unmarried fathers to prove visitation is in their child's best interest

By Julie Pirtle

A recent Illinois Supreme Court paternity case is changing the way family law attorneys look at visitation in a paternity action; we generally advise clients that custody and visitation under the Illinois Parentage Act of 1984 mimic almost identically custody and visitation under the Illinois Marriage and Dissolution of Marriage Act. And as such, a custodial parent has the burden of proving serious endangerment if they want to restrict the other parent's visitation rights in any way. 750 ILCS 5/607. However, serious endangerment is no longer the standard when custody and visitation are at issue in paternity actions in Illinois. In Re the Parentage of J.W. is a game-changing decision for visitation in a paternity action; family law attorneys will no longer be advising paternity clients that there is a presumption in favor of the maximum involvement of both parents. 2013 IL 114817 (2013). That presumption, although relevant in paternity suits, is only a presumption in cases brought pursuant to the Illinois Marriage and Dissolution of Marriage Act. Parentage of J.W. at P53.

In Parentage of J.W., Amy had an indiscretion with Steve while she was in a relationship with Jason and became pregnant with a girl, J.W., who was born on April 15, 2002. Id. at P4. Jason was listed on the birth certificate as he was unaware of Amy's sexual encounter with Steve; Amy and Jason married in March of 2003. Id. at P4. Amy and Jason subsequently divorced in 2006 and their Judgment for Dissolution of Marriage set custody and visitation for J.W. when she was approximately four years old. Id. at P5. In the summer of 2008, Steve saw a picture of the child on a social media site when she was six years old, and believed that the child resembled him. Id. at P5-P6. Steve then contacted Amy, a paternity test was done and in November 2008, it was determined that Steve was J.W.'s biological father. Id. at P6. Amy then told Jason that he was not J.W.'s biological father and began to try to form a relationship between Steve and J.W. Id. at P7. Subsequently, Jason filed petitions with the court in an attempt to keep Amy from forging a relationship between Steve and J.W. Id. at P8. As a result, an order was entered in January 2009 which prohibited Amy from residing with Steve and "allowing J.W. contact with Steve, and prohibited [Amy] from promoting the existence of any parent-child relationship between Steve and J.W. until further court order." Id. In February 2009, Steve petitioned the court to determine the existence of a parent-child relationship and for joint custody and visitation pursuant to section 14(a)(1) of the Parentage Act. Id. When Steve filed his petition J.W. was almost seven years old. Id. At P8. Jason did not contest the establishment of paternity but did ask that the court hold a hearing on visitation to determine what was in J.W.'s best interest. Id. After holding a hearing on Steve's right to visitation, the Trial Court, in denying Steve's petition to set visitation, held that the noncustodial parent had the burden of proving that visitation would be in the minor child's best interest and in this case, it was not because J.W. could not understand that Steve was her biological father. Id. at P29 and P30. Steve subsequently appealed the decision and, on appeal, the Fourth District applied the serious endangerment standard set forth in section 607(a) of the Illinois Marriage and Dissolution of Marriage Act and reversed the trial court's ruling. Id. The Fourth District held that Steve was "entitled to reasonable visitation rights unless visitation would seriously endanger [the child's] physical, mental, moral or emotional health." The Parentage of J.W. at P32. Jason then filed a petition for leave to appeal to the Supreme Court of Illinois. Id. at P33.

The Supreme Court subsequently granted leave to appeal to determine "what is the proper standard to be applied when a biological father seeks visitation privileges after a determination of parentage under section 14(a)(1)." Id. at P36. The Supreme Court started by reviewing the provisions of the parenting act relating to how the courts should proceed after a judgment for paternity is entered. Section 14(a)(1) of the Parentage Act states in pertinent part as follows:

The judgment...may contain provisions concerning the custody and guardianship of the child, visitation privileges with the child which the court shall determine in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act and any other applicable law of Illinois, to guide the court in a finding in the best interests of the child. In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including Section 609.

750 ILCS 45/149(a)(1) (emphasis added).

In focusing on the word "may" in section 14(a)(1), the Supreme Court stated that the trial court has discretion to grant visitation. Parentage of J.W. at P38. The Court further relied on the fact that the legislature specifically stated that the best interest standard is the standard in which custody and visitation issues should be determined and there is no mention of the serious endangerment standard set forth in Section 607(a). See Id. Not only is the standard to be applied in paternity cases different from the Illinois Marriage and Dissolution of Marriage Act, the burden of proof for visitation in custody matters under the Illinois Marriage and Dissolution of Marriage Act is on the opposite party. Under 607(a), there is a presumption in favor of the noncustodial parent; therefore, the burden is on the custodial parent to prove serious endangerment to restrict visitation with the non-custodial parent. 750 ILCS 5/607(a). However, as the court notes in J.W., no presumption exists here as the burden is on the noncustodial parent to prove that visitation would be in the child's best interest.See The Parentage of J.W.

So why the different standard for visitation for a child born from a marriage and a child born from a relationship between two individuals who never married? The court reasons that in a dissolution matter a child has most likely been residing with both parents and is accustomed to having a relationship with both parents.Id. at P47. Therefore, the Court believed that a more stringent standard needs to be applied when a custodial parent is now, during the pendency of a divorce, trying to limit the contact the non-custodial parent will have with the child. Id. Whereas in a paternity suit, we never know at what age the father will enter the child's life. Id.at P48. Thus, there may be little contact and no developed relationship between the child and his/her biological father before an action is filed. In the present case, the biological father entered the child's life as soon as he knew about her, but not until she was six years old and had already formed a significant bond with the man she believed to be her father. Id. The Court explains that in paternity suits there are often competing interests to balance and relationships already forged. Id. In the present case, they were concerned about introducing a new "father" into the picture because J.W. was not able to understand her relationship to this new person was because she already had a father. Id. at P28.

The Supreme Court uses the J.W. case to settle a dispute amongst the First, Third, Fourth and Fifth Districts regarding the standard to apply to visitation disputes in paternity actions. Id. at P42. The Fourth District had applied the best interest standard from section 602 whereas the First, Third and Fifth Districts had applied the serious engenderment standard of section 607. Id. at P42 (citing Wittendorf v. Worthington 2012 Ill App (4th) 12042 and Department of Public Aid v. Gagnon, 288 Ill.App.3d 424 (4th Dist 1997) in support of the best interest standard and Jines v. Jurich, 335 Ill.App.3d 1156 (5th Dist. 2002), In Re Parentage of Melton, 314 Ill.App.3d 476 (1st Dist. 2000), and Wenzelman v. Bennet, 322 Ill.App.3d 262 (3rd Dist. 2001) in support of the serious endangerment standard). In now holding that the best interest standard applies, the Supreme Court expressly overrules Jines, Melton and Wenzelman on all points that are inconsistent with the J.W. decision.Parentage of J.W. at P53.

The Supreme Court goes on to uphold the trial court's ruling that it was not in J.W.'s best interests to have visitation with Steve as not being against the manifest weight of the evidence. Id. At P62. Part of the trial court's ruling was to order that a yearly reevaluation be done to determine J.W.'s understanding of her relationship with Steve and at the point that which she understands that Steve is her father all parties will be notified and then presumably file petitions accordingly. Id. At P28.

The J.W. decision has serious consequences for Steve, and possibly other biological fathers in the future, who may be restricted from having contact with biological children if they do not act quickly enough. Although the Illinois Supreme Court considers the best interest standard to be the "guiding star," did they take it too far here? In the days of blended families, surely a child can come to understand a new relationship, and it is unlikely this is the last we will hear of the standard for visitation in paternity actions.

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