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In Re Marriage of Anderson

OPINION FILED FEBRUARY 11, 1985.

IN RE MARRIAGE OF JANET SUE ANDERSON, A/K/A JANET SUE SENSENEY, PETITIONER-APPELLEE, AND RICHARD H. ANDERSON, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Du Page County; the Hon. Edmund P. Bart, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

The respondent, Richard Anderson, appeals from an order of the trial court that restricted his visitation rights and denied his petition for a rule to show cause. His principal assignment of error in this court is the trial court's order restricting his visitation rights.

The petitioner, Janet Sue Anderson, a/k/a Janet Sue Senseney, and the respondent were married on August 10, 1968. Two children, Justin and Marc, were born as a result of the parties' union. Their marriage was dissolved in Cook County on November 14, 1979, pursuant to Janet's petition for dissolution. A written separation agreement, which granted the petitioner custody of the two minor children and provided for visitation rights as agreed upon by the parties, was incorporated as part of the judgment of dissolution.

On June 15, 1984, the petitioner sought to enroll the Cook County judgment in the circuit court of Du Page County, and to terminate the respondent's visitation with his minor children. The court, ex parte, enrolled the Cook County judgment of dissolution and suspended the respondent's visiting rights until further order of the court based on allegations of sexual misconduct of the father with his minor son, Marc, age six, when they repeatedly bathed together in a tub.

On June 25, 1984, the court granted respondent leave to file a petition to vacate the ex parte order, and on June 29 the parties appeared in court to determine whether Sharon Ellis, a social worker employed by the Child Sexual Abuse Treatment & Training Center of Illinois (CSATC) had completed her evaluation. The court ordered that Marc be evaluated by Dr. Roger Hatcher, that the respondent be given supervised visitation after that interview with Dr. Hatcher, and that the matter be continued to July 2. On July 2, Dr. Hatcher, a clinical psychologist, testified with respect to his interview with Marc. He conducted no psychological tests on Marc but limited his contact to a 20-minute interview. He performed tests on the respondent that demonstrated no significant clinical abnormality, and, in his opinion, the respondent had no personality trait that was consistent with the traits of a sexual abuser.

Dr. Hatcher also interviewed the petitioner and her new husband but did not conduct any tests on them, and was told of additional conduct of the child of which the mother was concerned. He stated that further evaluation was necessary but that the respondent posed no danger to the child, although he was not then convinced that no abuse had taken place. In his opinion, Marc would not suffer any psychological or physical danger if his father were allowed to visit him alone. He indicated that a supervised visitation would be prudent until he completed his evaluation, and he commented adversely on the evaluation of the CSATC.

At the conclusion of that hearing, the court entered an order reinstating visitation rights, but providing that weekend visitations were to be supervised. The order discharged CSATC and prevented them from further interviews or evaluation.

At the hearing on July 26, Dr. Hatcher testified that he interviewed Marc three times and had given him a battery of projective personality tests. He also interviewed both the petitioner and the respondent. While it was his opinion that the acts of sexual abuse had not taken place, he believed that Marc was afraid of seeing his father undress in front of him. He believed that the minor was not in danger, that the respondent had not sexually abused him, that it would be damaging to continue supervised visitation, and that the respondent should be allowed extended unsupervised visitation immediately. He also commented that Marc, now six years old, should not be bathing with his father.

At the hearing on August 8, David Moulthrop, a clinical psychologist, testified on behalf of the petitioner. He had not met Marc, the respondent or the petitioner, but gave his opinion that the psychological tests given by Dr. Hatcher could not indicate whether a child had been sexually abused. On August 10, the trial court entered an order finding the respondent had not engaged in sexual child abuse, reinstating his visitation rights, except for supervised overnight visitation, and denying the petition for a rule to show cause. The respondent filed a motion to reconsider that order. Following a hearing, the court made a finding that Marc had suffered mental abuse, without a specific finding as to whether respondent or petitioner had caused it. The court thereafter denied the motion to reconsider. The respondent filed a timely notice of appeal from both the August 10 order and the subsequent order denying the motion to reconsider.

The respondent argues on appeal that the trial court's order of August 10, 1984, which provided, in pertinent part, that respondent was entitled to one week's summertime visitation, excluding overnight visitation, and supervised overnight weekend visitation with his minor son, amounted to a restriction of his visitation rights under section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) (Ill. Rev. Stat. 1983, ch. 40, par. 607(c)).

• 1 The petitioner responds that the trial court's order of August 10 amounted to a modification, rather than a restriction, of the respondent's visitation rights and that there was sufficient evidence in the record to support the modification order under the "best interest" test of section 607(c) of the Act.

Section 607(c) of the Act, which addresses both the modification and restriction of visitation, provides as follows:

"The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral or emotional health." Ill. Rev. Stat. 1983, ch. 40, par. 607(c).

An examination of the above enactment reflects that the legislature prescribed two different tests concerning the modification and restriction of visitation rights. (See Gibson v. Barton (1983), 118 Ill. App.3d 576, 580; In re Marriage of Solomon (1980), 84 Ill. App.3d 901, 906.) The best-interest-of-the-child standard governs the modification of visiting rights (Coons v. Wilder (1981), 93 Ill. App.3d 127, 131; see In re Marriage of Griffiths (1984), 127 Ill. App.3d 123, 125), whereas the endangerment standard governs the restriction of such rights where the court finds that the visitation as it exists seriously endangers the child's ...


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