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People Ex Rel. Vallera v. Rivera





APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.


This suit began as a paternity action brought by Sharon Vallera against defendant Arturo Rivera as the father of her unborn child. Defendant entered his appearance, admitted that he was the father, and was ordered to pay medical expenses and support. After the baby was born, defendant filed a petition requesting visitation rights, and a hearing on the petition was held in December, 1972. After a delay of over two years, the trial court entered an order in March, 1975, denying the petition. Defendant appeals, arguing that the father of an illegitimate child cannot be denied visitation rights as a matter of law.

The Illinois Paternity Act, section 12 (Ill. Rev. Stat. 1971, ch. 106 3/4, par. 62) which provided that the father of a child born out of wedlock had no right to the custody or control of his child, was construed to deny the father of an illegitimate child any right to visit his child. (DePhillips v. DePhillips (1966), 35 Ill.2d 154, 219 N.E.2d 465.) *fn1 However, section 12 (par. 62) has been declared unconstitutional in that it deprived the father of illegitimate children the due process right of all parents to a fitness hearing in a child custody proceeding and thus denied him equal protection of law as guaranteed by the 14th Amendment to the United States Constitution. (Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208; People ex rel. Slawek v. Covenant Children's Home (1972), 52 Ill.2d 20, 284 N.E.2d 291.) In Slawek, the Illinois Supreme Court held that notice and consent of the putative father are required in an adoption proceeding because the Stanley decision "* * * recognized that the interests of the father of an illegitimate child are no different from those of other parents." (52 Ill.2d 20, 22, 284 N.E.2d 291, 292.) (Contra, In re Malpica-Orsini (1975), 36 N.Y.2d 568, 370 N.Y.S.2d 511, 331 N.E.2d 486.) As a result of the decisions in Stanley and Slawek, the Illinois Adoption Act was amended in 1973 to require the consent of the father, as well as the mother, of an illegitimate child in an adoption proceeding. (Ill. Rev. Stat. 1975, ch. 4, pars. 9.1-1E and 9.1-8.) Since the father of an illegitimate child is no longer barred from obtaining custody, courts now must consider the familiar "best interests of the child" standard in each case where a putative father seeks to obtain custody. Vanderlaan v. Vanderlaan (1st Dist. 1972), 9 Ill. App.3d 260, 292 N.E.2d 145.

We believe the public policy of Illinois, as indicated by the Supreme Court and the legislature, requires recognition of the right of a putative father to visit his child upon a showing that his visits will not be detrimental to the best interests of the child. In reaching this conclusion, we adopt the view expressed in Commonwealth v. Rozanski (1965), 206 Pa. Super. 397, 402-03, 213 A.2d 155, 157-58, 15 A.L.R.3d 880, 884:

"To state as a matter of law that the visits of a putative father are always detrimental to the illegitimate child's best interests is to exalt rule over reality. This approach ignores the growing recognition in our courts, and in courts throughout the nation, of the need to determine the welfare of each child in light of his own particular needs and circumstances.

The putative father may, in many instances, instill in the child a sense of stability. He may develop qualities in the child which the mother is uninterested, unwilling or incapable of developing. To the extent that he can perform such a valuable service, his presence becomes exceedingly important. Certainly, to the illegitimate child, the father is never putative.

We recognize that granting visitation privileges to the putative father may not always serve the child's best interests. Visitation rights, however, are always a matter for the supervision of the courts. Should it appear, after visitation privileges have been granted, that the father's presence has an adverse effect on the child's welfare, the right to visit may be withdrawn.

In summary, every case must be decided on the basis of its own particular facts. The unique problems of each child must receive individual attention and consideration. Any attempt by us to determine the best interests of every child by a single rule would be judicially, socially and morally unsound."

• 1 One important consideration for the trial court is whether visits by the putative father will have a disruptive influence on the child, particularly when the mother has married and visitation would interfere with the adjustment of the child to a new family relationship. Commonwealth v. Spano (1949), 68 Pa. D. & C. 248.

However, where the needs of the child for a father's affection and guidance are urgent and immediate, and the putative father is the only person available to meet these needs, visitation may be granted subject to such conditions as the court may find necessary to minimize the potential for conflict or disruption. (Commonwealth v. Rozanski.) Of particular significance would be the existence of an established family relationship between the father and child, such as where the father had been living with the mother and child, or where the father has previously had custody of the child. M. v. M. (1970), 112 N.J. Super. 540, 271 A.2d 919; Z. v. A. (1971), 36 App. Div.2d 995, 320 N.Y.S.2d 997.

• 2 In any event, visitation should be allowed only where the father has acknowledged paternity and should be conditioned on his contributing to the support and maintenance of the child. In re Anonymous (1958), 12 Misc.2d 211, 172 N.Y.S.2d 186; Mixon v. Mize (Fla. App. 1967), 198 So.2d 373.

• 3 The trial court in the case at bar filed a memorandum opinion, stating public policy reasons for denying visitation rights to putative fathers in general, but making no findings of fact based on the evidence adduced at the hearing. Because of the absence of any finding that, under the facts of this case, visitation by defendant would not be in the best interests and welfare of the child, we must reverse the order of the trial court and remand for the required determination.

It has been 4 1/2 years since the hearing on defendant's petition, and apparently plaintiff is now married. We therefore believe that this case should be remanded for hearing additional evidence as to the present circumstances of the parties and for a determination of whether visits by defendant would be in the present best ...

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