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April 27, 1995


Appeal from Circuit Court of Champaign County. Nos. 92C1454, 92C1505. Honorable Donald R. Parkinson, Judge Presiding.

As Corrected May 3, 1995. Released for Publication June 6, 1995. As Corrected May 31, 1995.

Honorable Frederick S. Green, J., Honorable James A. Knecht, P.j., Honorable John T. McCULLOUGH, J. Knecht, P.j., and McCULLOUGH, J., concur.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

This concerns a dispute between a former husband and wife as to the custody of a child born during their marriage but who is determined at the time of dissolution not to be the child of the husband. The decision requires consideration of the doctrine of the superior right of a natural parent and also the public policy of protecting the best interests of the child. No decision of a court of review of this State which is directly on point has been called to our attention.

On November 6, 1992, petitioner Steven M. Roberts filed a petition in the circuit court of Champaign County seeking dissolution of his marriage to respondent Jennifer L. Roberts and requesting the sole custody of the child born August 1, 1990, during that marriage on the basis the best interests of the child would be served thereby. On November 12, 1992, the court entered an interim order of protection directing respondent to vacate the marital residence and to turn over to petitioner exclusive possession of the residence and temporary custody of the child. On November 18, 1992, respondent filed a responsive pleading to the petition alleging that petitioner was not the natural parent of the child. Respondent had raised this same issue earlier in a separate proceeding consolidated with this case in the circuit court.

Blood tests performed on April 7, 1993, indicated that petitioner was not the father of the child born during the marriage. On August 11, 1993, the court entered a bifurcated judgment dissolving the marriage but leaving all other matters for future determination. After hearing further evidence, the court entered a final order on June 9, 1994. The court ruled that under the circumstances shown, petitioner was an "equitable parent" of the child and, thus, the usual criterion of the child's best interests was to be applied to determine custody. Having made that legal analysis, the court had no difficulty determining that the best interests of the child required placing the child with petitioner subject to reasonable visitation. The court also found that respondent was estopped to assert petitioner's lack of parentage.

Respondent has appealed the portion of the final order which awarded custody of the child to petitioner. Her principal contention on appeal is that the circuit court erred in rejecting the superior rights of a natural parent doctrine and adopting the "equitable parent" doctrine which permitted the court to award custody on the basis of the best interests of the child. She also asserts that the court erred in finding estoppel and in requiring her to pay one-half of the fee of the guardian ad litem (GAL) for the child. We reverse the order of custody and remand for reconsideration in accordance with the rulings of this opinion. We vacate the order in regard to respondent's payment of GAL fees and order reconsideration of that issue.

One of the circumstances which the court considered in determining that petitioner was an "equitable parent" of the child arose from the court's determination that respondent misled petitioner to believing for a long time that he was the natural father of the child. We consider first the evidence on this point. Respondent gave birth to the child on August 1, 1990. At the time the dissolution proceedings began in the fall of 1992, the parties were both members of the United States Air Force and were stationed at Chanute Air Force Base (Chanute) at Rantoul, Illinois.

The parties agreed that they began having intercourse in mid- to late-December 1989. They differed as to whether petitioner knew he was not the father of the child when they were married. He maintained he did not and thought he was the child's father. He testified he would not have married respondent nor would he have provided for the child had he thought another was the child's father. He further testified that, nevertheless, he grew to love the child very much and wanted to keep him.

Respondent testified that she told petitioner of the fact that another man was the child's father before the marriage and her mother testified that on the wedding day petitioner admitted to her that he was not the child's father. Respondent's mother's "common-law husband" testified to a similar conversation with petitioner on that date. Respondent also testified she was present when petitioner had a conversation with the child's natural father and the father said he did not care about the pregnancy. Petitioner testified that respondent was aware that he placed his name on the baby's birth certificate as the, father and respondent denied she was aware of it.

If the parties first had intercourse in late December 1989, when the child was born on August 1, 1990, the child was at least two months short of having a usual gestation period of approximately nine months, yet the child weighed 8 1/2 pounds at birth. At least by that time, petitioner would likely have understood that he was not the father of the child. However, the evidence was fairly evenly balanced as to whether petitioner did not know he was not the father of the child for several months. The finding of the court in this respect was not contrary to the manifest weight of the evidence.

The evidence presented in regard to the best interests of the child was not as evenly balanced as that concerning petitioner's knowledge of his parental status and whether respondent deceived him in that respect. However, because of the complicated legal problems involved in determining whether this evidence was properly considered and to illustrate some of the problems that arise if we do not consider it, we set forth that evidence in detail.

Petitioner testified that (1) even after respondent recovered from the cesarean operation she had at the time of the birth, he continued to do considerable housework and baby care; (2) he always took care of the child when he came home from work; (3) he was sent to Korea in the spring of 1991; (4) respondent later admitted that while he was gone, she had traveled to see another man in Alaska and on another occasion took the child to see that man's parents in Texas; (5) when he resumed living with her, she once, while intoxicated, caused an hysterical scene in the child's presence; and (6) on another occasion, in the child's presence, she kicked and broke the windshield of their automobile.

Petitioner further testified that (1) immediately prior to his filing the instant petition to dissolve the marriage, respondent left for Oklahoma, leaving the child with him, and came back one week later and called the police claiming he had kidnapped the child; (2) while at Chanute, he would often come home at lunch time and find respondent lying on the couch while the child had still not been dressed or fed; (3) when he came home at night, he often took the child outside to play while respondent remained on the couch watching television; and (4) when he had temporary custody, he had a consistent schedule of coming home in the evening, making a dinner, playing with the child, reading, giving the child a bath, and getting his clothes ready for the next day.

According to petitioner, shortly after he was given temporary custody, respondent left for Oklahoma and only made 13 of her scheduled 28 visits thereafter. Petitioner further stated that respondent did not advise him when she was going to keep a scheduled visit. Petitioner explained that respondent suffered from multiple sclerosis and would at times lose consciousness or wake up temporarily paralyzed. He also said that after the child was born respondent experienced rapid and violent mood swings. He admitted that when he was in Korea, respondent did care for the child. He stated that ...

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