APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
541 N.E.2d 1159, 185 Ill. App. 3d 778, 133 Ill. Dec. 721
June 26, 1989; As Corrected November 28, 1989.
Appeal from the Circuit Court of Cook County; the Hon. D. Adolphus Rivers, Judge, presiding. 1989.IL.995
PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and QUINLAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
On May 21, 1986, plaintiff, Richard Klawitter, petitioned the circuit court of Cook County pursuant to the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, pars. 2501 through 2526), and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 601 et seq.), to establish paternity and visitation rights with Benna Crawford, a minor child, alleging that he was Benna's father. Lauren Crawford, Benna's mother, filed a motion to dismiss the petition based on the fact that the plaintiff had not filed suit within the two-year limitations period provided in the Illinois Parentage Act of 1984. Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2).
Plaintiff appeals from the dismissal: (1) contending the trial court erred in applying the statute of limitations retroactively and (2) challenging the statute of limitations on constitutional grounds. We affirm the decision of the trial court.
We first address plaintiff's contention that the two-year statute of limitations provision incorporated in the Illinois Parentage Act of 1984 violates the equal protection clause of the United States Constitution and article I, section 2, of the Illinois Constitution of 1970.
A brief Discussion of the Illinois Parentage Act in its historical context is appropriate at this juncture. Under the Paternity Act of 1958 (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.), putative fathers were not allowed to bring an action to establish paternity at any time. No statute expressly governed actions by putative fathers seeking to establish their paternity. However, Illinois courts did recognize such a right of action by putative fathers, and accordingly, allowed them to seek relief under the Illinois Marriage and Dissolution of Marriage Act (In re Custody of Myer (1981), 100 Ill. App. 3d 27, 426 N.E.2d 333), and under the declaratory judgment act (Pritz v. Chesnul (1982), 106 Ill. App. 3d 969, 436 N.E.2d 631). Actions brought pursuant to these statutes were not limited by a statute of limitations. The Parentage Act, enacted September 12, 1984, became effective July 1, 1985, and provides, inter alia, that a man alleging to be the father of a child, in order to establish a father/child relationship, must bring an action within two years after the child's birth. Ill. Rev. Stat. 1985, ch. 40, pars. 2507(a), 2508(a)(2), 2514.
Upon review of the legislative history of the Illinois Parentage Act of 1984, it appears that the Paternity Act of 1958 was repealed in response to the United States Supreme Court's denunciation of a similar statute in Tennessee in which the statute was held to be unconstitutional because it denied equal protection to illegitimate children seeking support (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199), and our supreme court's decision in Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24, which held that the two-year statute of limitations under the Illinois Paternity Act of 1958, which precluded the bringing of an action to establish paternity by anyone later than two years of the birth of the child, was similarly unconstitutional discrimination against illegitimate children.
Plaintiff recognizes that the Illinois Parentage Act of 1984 extends the rights of an illegitimate child to establish the parent-child relationship until two years after the child reaches the age of majority and expressly allows a putative father to bring an action to establish paternity. However, plaintiff argues that the Act is still defective because the two-year statute of limitations applicable to an action brought on behalf of any person other than the child (Ill. Rev. Stat. 1985, ch. 40, par. 2508(a)(2)) violates equal protection guarantees. Specifically, plaintiff contends that the statute of limitations bars putative fathers from maintaining an action on their own behalf to establish a relationship with the child while fathers of children born during marriage are not similarly restricted in custody, visitation or support actions.
Courts are to assume that the legislature intends to enact constitutional statutes. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431.) Further, all doubts are to be resolved in favor of upholding the validity of the law challenged. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517.) In analyzing the nature of the statutory classification allegedly causing discrimination, courts apply different levels of scrutiny. (See Clark v. Jeter (1988), 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910.) Here, the classification is not based on any of the suspect categories of race, religion, or national origin, nor does it infringe upon fundamental rights requiring strict scrutiny. (See Clark, 486 U.S. at 461, 100 L. Ed. 2d at 471, 108 S. Ct. at 1914. See also Loving v. Virginia (1967), 388 U.S. 1, 18 L. Ed. 2d 1010, 87 S. Ct. 1817; Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 672, 16 L. Ed. 2d 169, 176, 86 S. Ct. 1079, 1084.) Neither is the classification based upon sex or illegitimacy, which are given an intermediate scrutiny. See, e.g., Mississippi University for Women v. Hogan (1982), 458 U.S. 718, 723-24, 73 L. Ed. 2d 1090, 1097-98, 102 S. Ct. 3331, 3335-36; Craig v. Boren (1976), 429 U.S. 190, 197, 50 L. Ed. 2d 397, 407, 97 S. Ct. 451, 457.
Instead, the statutory classification which the plaintiff alleges is discriminatory is based upon persons other than the illegitimate child for whose benefit a paternity action is instituted. Therefore, in reviewing the statutory classification of presumed or alleged fathers, this court need only accord minimal scrutiny and determine if the classification bears some fair relationship to a legitimate governmental purpose (Lehr v. Robertson (1983), 463 U.S. 248, 265, 77 L. Ed. 2d 614, 629, 103 S. Ct. ...