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01/12/96 MARRIAGE KARA L. SLAYTON F/K/A KARA L.

January 12, 1996

IN RE THE MARRIAGE OF: KARA L. SLAYTON, F/K/A KARA L. STRAPPE, PLAINTIFF-APPELLEE, AND THOMAS J. STRAPPE, DEFENDANT-APPELLANT. IN RE THE PATERNITY OF BRANDON JAMES STRAPPE, A MINOR.


Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 91-D-109, No. 91-F-523. Honorable Scott A. Shore, Judge Presiding.

Rehearing Denied February 15, 1996. Released for Publication February 15, 1996.

Present - Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice. Holdridge, P.j., and Lytton, J., concur.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

This appeal raises issues concerning the paternity and custody of a minor child where a presumed father and a man alleging to be the biological father compete for the right and responsibility to raise the child. The specific questions presented are: (1) whether a trial court must conduct an initial hearing to determine whether a paternity action is in a child's best interests; and (2) whether a man who is presumed to be the father at the time paternity proceedings are commenced may seek custody of the child after the presumption of fatherhood has been rebutted and another man has been found to be the child's biological father. The circuit court answered both questions in the negative. For the reasons that follow, we reverse as to the second question and remand for further proceedings.

FACTS

The plaintiff, Kara Slayton f/k/a Kara Strappe, and the defendant, Thomas Strappe, were married in 1986. One child, Brandon, was born during the marriage, in May 1989. As there was no indication to the contrary, Thomas assumed he was Brandon's natural father and treated Brandon as his son throughout the marriage.

In February 1991, Kara brought an action to dissolve the marriage, alleging in her petition that no children were born of the marriage. This was apparently the first time Thomas was made aware that someone else might be Brandon's biological father. Thomas nonetheless denied that no children were born of the marriage and requested sole custody of Brandon in the event dissolution was granted. The court entered an order dissolving the marriage, but generally reserving the substantive issues until a later date. Temporary custody of Brandon was placed with Kara subject to Thomas's rights of visitation.

Meanwhile, Jeffrey Slayton filed a paternity action alleging that he was Brandon's biological father. The court took no action on this suit until April 1992, when it consolidated the suit with the dissolution proceeding between Kara and Thomas. Soon thereafter, Kara and Jeffrey married.

In October 1992, the court, upon its own motion, appointed a guardian ad litem to represent Brandon's interests. The guardian filed another paternity petition, alleging in alternative counts that either Thomas or Jeffrey was Brandon's natural father. The guardian also moved for blood tests to facilitate the paternity determination. The court ordered blood tests, over Thomas's objection, in January 1993. The results, filed with the court in June 1993, showed that Thomas could not be Brandon's biological father and that Jeffrey was, to a 99.8% probability, the father. Three months later, the marriage between Jeffrey and Kara ended in dissolution, and Jeffrey was granted visitation rights with Brandon.

Based upon the blood tests, Kara moved for summary judgment on the issue of Brandon's paternity in September 1993. Thomas, in turn, argued that the court should first determine whether a paternity proceeding was in Brandon's best interests before considering the results of the blood tests. Toward this end, Thomas moved for a psychological evaluation of the parties, arguing that such an evaluation would aid the court in its determination of Brandon's best interests.

The court granted Thomas's motion for psychological testing, but considered Kara's motion for summary judgment in April 1994, before the results were filed with the court. The court rejected Thomas's argument that a hearing to determine the child's best interests must precede a paternity determination. Thus, based solely upon the blood tests, the court entered summary judgment on the issue of Brandon's paternity in Jeffrey's favor.

In May 1994, Kara and Jeffrey filed a stipulated request that the trial court place permanent custody of Brandon with Kara. Kara also filed a motion to remove Brandon to Wisconsin, where Jeffrey had since relocated. Kara's petition alleged that Kara and Jeffrey contemplated a reconciliation and possible remarriage.

Prior to the court's consideration of these motions, the results of the psychological tests were filed with the court. The psychologist determined that Brandon was aware that Jeffrey was his "real dad," and that healthy bonding had occurred between the two, so that the potential existed for a "healthy family identity and relationship" among Kara, Jeffrey and Brandon. The psychologist also found, however, that Brandon had bonded with Thomas and that Brandon should have contact with Thomas for some period of time. Therefore, the ...


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