Appeal from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding. Reversed and remanded with directions.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified July 28, 1970.
Plaintiff appeals from a judgment denying her petition to modify a decree which had awarded custody of her two youngest children to defendant.
The parties were married on October 13, 1954, and on September 9, 1959, plaintiff was granted a divorce. One child, Debra, was born prior to the divorce and custody was awarded to plaintiff. Defendant was ordered to pay $30 per week for Debra's support. On December 21, 1962, the original divorce decree was amended by a finding that plaintiff and defendant had resumed "marital relations" *fn1 after the divorce decree of September 9, 1959; that another child, Jeffery, was born February 26, 1961, fifteen months after the entry of the original divorce decree; that plaintiff was pregnant with child by defendant; and that defendant admitted the paternity of Jeffery and the child in esse. The court found that defendant was their father and ordered him to pay plaintiff $35 per week for their support. Plaintiff and defendant separated some time in 1962.
Another amended order was subsequently entered on February 27, 1963, indicating that the third child, Randy, was born January 2, 1963, and that defendant was his father.
During 1963 and 1964 defendant was in arrears in his support payments and on October 1, 1965, there was an order settling defendant's child support arrearage at $350 and giving defendant visitation rights with the children.
On August 30, 1966, the court, upon defendant's petition, ordered that the custody of Debra, Jeffery and Randy Vanderlaan be awarded to defendant until further order of court; that defendant's support payments be abated; and that plaintiff be given the children for six weeks in the summer and other reasonable visitation rights.
Subsequently, on July 28, 1967, plaintiff filed a petition seeking a modification of the August 30, 1966, order. Plaintiff prayed that the custody of the three children be awarded to her.
On September 21, 1967, the court was informed by the oldest child, Debra, that she desired to return to live with her mother (plaintiff). The parties agreed and pending a hearing on plaintiff's petition of July 28, the court awarded custody of Debra to plaintiff; Jeffery and Randy to continue in the custody of defendant, and each party to have reasonable visitation rights.
On October 15, 1968, the court held a hearing on plaintiff's petition to modify the August 30, 1966, order. The court found that plaintiff voluntarily sent defendant a letter dated July 25, 1966, in which she stated that the children would be happy in a small town away from the dangers of a large city and that with defendant they would have a family life since she had to work and could not spend very much time with the children. The court also found that after having sent the letter, plaintiff voluntarily gave custody of the children to defendant; *fn2 that plaintiff had full knowledge of her acts even though she did not have the advice of counsel; that plaintiff voluntarily agreed to the August 30, 1966, order; that plaintiff and defendant both agreed the other was a fit and proper person to have custody of the minor children; that after August 30, 1966, plaintiff and defendant agreed to allow Debra to return to live with plaintiff; that there had been no change in circumstances affecting the children; and that it was in the best interest of Jeffery and Randy to remain with defendant. Therefore, the court denied plaintiff's petition to modify the August 30, 1966, order except that Debra was to remain with plaintiff, and Jeffery and Randy with defendant. Each party was granted mutual visitation rights. It is from this order which plaintiff appeals.
Plaintiff contends that defendant, as the putative father of Jeffery and Randy, had no right to the custody of these children born out of wedlock. Plaintiff cites Ill Rev Stats 1967, c 106 3/4, § 62, in support of her contention. Section 62 provides:
A person charged or alleged to be the father of a child born out of wedlock, whether or not adjudicated the father under this Act, shall have no right to the custody or control of the child except such custody as may be granted pursuant to an adoption proceeding initiated by him for that purpose.
In DePhillips v. DePhillips, 35 Ill.2d 154, 219 N.E.2d 465, plaintiff, the father of a twelve-year-old child born out of wedlock, brought suit against the mother and her purported husband to obtain custody of the child, or in the alternative, visitation rights. Defendant's motion to dismiss the complaint was denied. After a hearing the trial court entered an order that plaintiff contribute to the support of the child and have rights of visitation. The appellate court reversed and remanded with directions to vacate the decree on the ground that the trial court lacked jurisdiction due to the illegal behavior of the parties. The Supreme Court granted plaintiff leave to appeal. In its opinion the court at page 156 states:
We are not faced in this case with the difficult public policy determination which has troubled courts in other jurisdictions. In Illinois, this determination has been made by our legislature, and is embodied in section 13 of the Bastardy Act of 1872, as amended. At the time of Donna's birth in 1951, that section provided that "The reputed father of a bastard child shall have no right to the custody or control of such child." (Ill Rev Stats 1951, c 17, par 13.) As we have previously held, the act in effect at the time of the birth of an illegitimate child must be looked to in determining the rights and liabilities of the father of such child. Di Bella v. Cuccio, 15 Ill.2d 580.
Plaintiff suggests that this section prohibits only custody or control but does not expressly proscribe the granting of visitation rights to a parent. Although an argument may be made that a grant of visitation right does not necessarily grant legal custody . . . section 13 of the Bastardy Act, as amended, prohibits not only the granting of custody but also the granting of "control" to a putative father. . . . In our opinion, a grant of visitation rights of necessity involves a grant of "control" over a minor child. Section 13 clearly embodies a legislative determination that a putative father should ...