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April 5, 1994




The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

On February 20, 1991, relator Guadalupe Mendez, on behalf of her daughter Raquel, filed a complaint to determine the existence of a father and child relationship between Raquel and defendant Rafael Villa. Relator alleged that she and defendant had engaged in sexual intercourse on a few occasions during the months of December 1979 and January 1980, as a result of which she became pregnant with Raquel, who was born approximately nine months later on September 7, 1980. She sought a declaration that defendant was Raquel's natural father, and, inter alia, that he be ordered to pay child support for her, retroactive to the date of her birth.

Pursuant to section 11 of the Illinois Parentage Act of 1984 (750 ILCS 45/11 (West 1992) formerly Ill. Rev. Stat. 1991, ch. 40, par. 2511), the parties submitted blood samples in order that appropriate blood and genetic comparison paternity tests be conducted by Genetic Design, Inc., of Greensboro, North Carolina. The test results disclosed that defendant could not be excluded as the father of Raquel, and that he was, in fact, 99.99% likely to be her father. The results also showed that defendant's combined paternity index (CPI), which, as described by relator's expert, Dr. Christine Durkie, is astatistical compilation of the results of three different types of genetic tests, was 6,789-to-1. According to Durkie, that figure predicted that defendant was 6,789 times more likely to be the father of Raquel than any randomly chosen male who would qualify as a member of the population group defined as hispanic. Because the CPI was in excess of the statutory minimum of 500-to-1, defendant's paternity of Raquel was to be presumed, and could be rebutted only by clear and convincing evidence demonstrating that he was not her father. *fn1

"S11 Blood Tests. (a) As soon as practicable, the court * * * may, and upon request of a party shall, order * * * the mother, child and the alleged father to submit to appropriate tests to determine inherited characteristics, including, but not limited to, blood types and genetic markers such as those found by Human Leucocyte Antigen (HLA) tests. * * *.

(f) Tests taken pursuant to this Section shall have the following effect:

(4) If the blood or tissue tests show that the alleged father is not excluded and the combined paternity index is at least 500 to 1, the alleged father is presumed to be the father, and this evidence shall be admitted. This presumption may be rebutted by clear and convincing evidence." 750 ILCS 45/11 (West 1992) formerly Ill. Rev. Stat. 1991, ch. 40, par. 2511.

Defendant, called as an adverse witness, admitted to having sexual relations with Guadalupe Mendez, sometime around January or February 1980. He also affirmed that he had previously met Raquel, the first time being when she was very young. Some years later, he saw Raquel at his father's funeral, at which time he gave her a chain which had been either his father's or his ex-wife's, and a charm in the shape of a bull, which represented taurus, the sign of the zodiac under which she was born.

After the funeral, Raquel accompanied him to his home, where his relatives had gathered. He denied introducing Raquel as his daughter to the group assembled, but instead recalled introducing her simply as Raquel. Before the paternity action was filed, he had last seen her when she spent a few nights at his home during her Christmas vacation, at which time he again gave her presents. He denied telling Raquel that he was her father and further denied that he had ever heard Raquel refer to his sisters as "aunt" or his mother as "grandma." Finally, he had no recollection of his ever having spoken to Raquel concerning the changing of her surname from Mendez to Villa.

In cross-examination and during his testimony after relator hadrested, he explained that he met Guadalupe through his sister, Linda Tanaschuk, with whom Lupe had a close relationship. It was Linda who informed him that Raquel had been born. In the year before the filing of the paternity suit, he and his sister were at odds over his decision to take their mother out of a nursing home, and also because Linda blamed him for impregnating her friend Guadalupe. He explained that this friction caused him to give the child presents, in the hope that it would appease his sister.

Guadalupe testified that she had four children, three of whom were fathered by her estranged husband Abel Mendez. She and Abel were divorced in May 1979, the year before Raquel was born. She stated that she met defendant through her cousin and that their relationship was very brief, during which they twice engaged in sexual intercourse. When she skipped her next menses, she called defendant, predicting that she was pregnant, and told him she was contemplating abortion, to which he was unresponsive. She later decided to carry the baby to term.

When Raquel was born, Guadalupe listed Abel as her father on the birth certificate because, according to her, she was informed that in order to name defendant as the father, she had to have him sign the form, and at that time she was unaware of his whereabouts. Abel later testified that he could not have been the biological father of Raquel, and that he did not give Guadalupe permission to name him as the father on Raquel's birth certificate.

Raquel also testified, to which defendant objected on the ground of prejudice, and she related a conversation she had with defendant at his father's funeral, during which he took her aside and confessed that he was her father. When she was at his home during her Christmas vacation, he gave her presents, ...

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