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In Re Custody of Myer





APPEAL from the Circuit Court of McLean County; the Hon. LUTHER H. DEARBORN, Judge, presiding.


This appeal presents an unusual question concerning the scope of the custody provisions of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 601-610) (Act).

Petitioner and respondent enjoyed a brief liaison during a tour of duty by petitioner in the United States Navy. The minor child, who is the subject of these proceedings, was the result. She was born January 6, 1970. Petitioner has acknowledged paternity, and it is undisputed that petitioner and respondent have never married and that they are the natural parents of the minor.

On October 22, 1980, petitioner filed in the circuit court of McLean County a petition seeking visitation rights with the minor. It alleged the status of the parties as recited above and further alleged that during the first eight years of the minor's life respondent and the minor resided with petitioner's parents in McLean County for substantial periods of time. Further allegations were that a relationship of parental and filial love had arisen during that time between the minor child and the petitioner, and between the minor child and petitioner's parents. The latter were also original petitioners but were afterwards dismissed by the trial court as improper parties.

Petitioner seeks to undertake responsibilities for the minor's support and welfare, and, while not seeking custody, asks that reasonable visitation rights be granted to him. He alleged prior efforts at visitation but claimed that these had been frustrated by respondent.

Respondent filed a "response" to the petition. In it she admitted the circumstances surrounding the birth of the minor, essentially denied that any relationship had arisen between the child and the petitioner, detailed some of the cultural and religious differences which had arisen between her and petitioner's parents, and admitted her firm refusal to allow visitation.

Both the petition and the response refer to an order of the juvenile court concerning the minor. The petition alleges that this order, dated June 19, 1979, vests custody of the minor in respondent; the response filed in this case asks that the order be continued in full force and effect. This court, on its own motion, directed that the record in this case be supplemented with a copy of that order. It is now before us, and more will be said of it later.

The trial court took some brief evidence from the petitioner. The respondent did not appear at the hearing. Memoranda of law were submitted by counsel, and the court ultimately entered a brief order dismissing the petition on the ground that no cause of action is recognized in this State for the initiation of an original proceeding by a parent seeking visitation rights with his child when he has never had custody, has never been married to the natural mother, and the parties have never lived together as a family.

The positions of the parties on appeal may be briefly summarized as follows: Petitioner claims that the custody provisions of the Act provide a vehicle for adjudicating visitation rights under the facts of this case and that the pendency of a dissolution or separation action is unnecessary to confer jurisdiction on the trial court for such adjudication. He therefore argues that the trial court erred in finding that he could not state a cause of action. He argues further that the finding was against the manifest weight of the evidence. Since the evidence taken was so attenuated and since, further, the trial court disposed of the case on legal grounds, we will not consider at this time the latter argument.

Respondent argues that prior to the Act habeas corpus was the only vehicle by which a putative father might assert visitation rights. However, she appears to admit sub silentio that such a proceeding may be proper under the Act, but points out an allegation in the petition that custody was settled in the juvenile order of June 19, 1979. Therefore, the instant case is a modification proceeding, and section 610 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 610) prohibits any modification action earlier than two years after the date of the custody order. The instant petition, having been filed approximately 16 months after the juvenile order, is therefore, in her opinion, premature. Alternatively, she argues that while section 601 of the Act permits a "custody" proceeding, section 607 (Ill. Rev. Stat. 1979, ch. 40, par. 607) dealing with "visitation" does not provide for the filing of a petition. Further, she claims, whatever the nature of the petition is in this case, it does not meet the requirements of the Habeas Corpus Act (Ill. Rev. Stat. 1979, ch. 65, par. 3).

The problem was stated tersely by Mr. Justice Simon in People ex rel. Elmore v. Elmore (1977), 46 Ill. App.3d 504, 506, 361 N.E.2d 615, 617, as follows:

"In the absence of legislation establishing a procedure for resolving a dispute over custody of a child between parents who never have been married, society requires that the law shape an appropriate forum. The alternative is self-help, a solution not countenanced by this court because it serves the best interests of neither the child nor the parents. A court adjudicating a dispute between parents over custody of a legitimate child would be guided by what is in the best interest of the child and would best promote its welfare. [Citation.] We perceive no justification for proceeding differently with a child born out of wedlock."

The Elmore court was facing a situation under section 13 of the former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 14) which provided insofar as is pertinent here:

"The court may, on the application of either party, make such order concerning the custody and care of the minor children of the parties during the pendency of the suit as may be deemed expedient and for ...

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