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October 8, 1997


Appeal from Circuit Court of Peoria County. Nos. 91D109, 91F253. Honorable Joe R. Vespa, Judge Presiding.

Released for Publication October 8, 1997.

Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable John T. McCullough, J. - Dissent. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

Kara Slayton, f/k/a Kara Strappe, and Jeffrey Slayton appeal an order of the circuit court of Peoria County granting Thomas Strappe (Tom) visitation with their minor son, Brandon. Jeff and Kara are Brandon's biological parents, but Brandon was born during Kara's marriage to Tom. Kara and Jeff contend that because Tom is not Brandon's biological father, he should not have been granted visitation absent a "compelling reason" why he should be permitted to interfere with their "constitutionally protected parental rights." Kara and Jeff further contend that the court erred in finding that permanent visitation was in Brandon's best interests. We affirm.

Kara and Tom were married on July 12, 1986, and Kara gave birth to Brandon on May 12, 1989. The family resided in Elmwood, Illinois. Tom, having no reason to suspect otherwise, raised Brandon as his son. Tom's first indication that Brandon was not his natural child came in February 1991, when Kara petitioned for dissolution of marriage, case No. 91-D-109. In her petition, Kara alleged that no children were born of the marriage. If Kara had filed her petition for dissolution of marriage after May 12, 1991, she would not have been permitted to question Tom's paternity. See 750 ILCS 45/8(a)(3) (West 1994) (two-year Parentage Act statute of limitations). The trial court granted dissolution of the marriage, reserved substantive issues until later, awarded Kara temporary custody of Brandon and granted Tom visitation. In March 1991, Jeff filed a paternity action, No. 91-F-253, claiming that he was Brandon's biological father. No action was taken on the paternity suit until April 1992, when the trial court consolidated it with the marriage dissolution proceedings.

Jeff and Kara married on May 9, 1992, but lived apart during much of the marriage. Kara lived in Illinois (with another man, for a period) and Jeff lived in Missouri, then Wisconsin. Tom continued to exercise visitation with Brandon on alternate weekends plus two five-hour periods each week.

In October 1992, the court appointed a guardian ad litem (GAL) to represent Brandon's interests. The GAL filed paternity actions against both Jeff and Tom. In January 1993, blood tests were ordered over Tom's objection that testing should not be performed without first determining whether such testing was in Brandon's best interests. The test results established that Tom could not be Brandon's biological father and that there was a 99.8% probability that Jeff was the father.

Jeff and Kara's marriage was dissolved in September 1993. Kara retained temporary custody of Brandon, subject to visitation by both Jeff and Tom. (At the time of Jeff and Kara's divorce, Jeff supported Tom's efforts to gain custody of Brandon.) In September 1993, Kara moved for summary judgment on the issue of Brandon's paternity. In April 1994, the trial court granted summary judgment, ruling that Jeff was Brandon's biological father. In May 1994, Kara and Jeff filed a stipulated request that Kara be awarded permanent custody of Brandon. Kara also filed a motion seeking permission to remove Brandon to Wisconsin, where Jeff was now living. Kara and Jeff stipulated that they contemplated reconciliation and possible remarriage. The court ruled that because Tom was not Brandon's biological father, he lacked standing to contest Kara and Jeff's custody agreement. Accordingly, the court granted Kara custody and permission to remove Brandon to Wisconsin. Based on the recommendations of Dr. John Day, a court-appointed psychologist, the court determined that it was in Brandon's best interests to continue visitation with Tom, said visitation to occur every third weekend. This visitation order expired in January 1995 and all visitation ceased.

Tom appealed, contending that the trial court should have conducted a "best interests hearing" to determine whether an attack on his presumed paternity should have been allowed. Tom further contended that the court erred when it determined he lacked standing to seek custody of Brandon. The third district held that, under the facts presented, it was no longer useful to determine whether the paternity action was in Brandon's best interests, but the trial court erred in finding that Tom lacked standing. Therefore, the third district reversed the order granting Kara custody of Brandon and remanded the cause to allow both Kara and Tom to seek custody under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601 (West 1994)). In re Marriage of Slayton, 277 Ill. App. 3d 574, 660 N.E.2d 562, 214 Ill. Dec. 117 (1996).

On remand, Tom filed a motion for temporary visitation pending resolution of custody. On March 28, 1996, the court conducted a hearing on Tom's motion. Prior to the start of evidence, the court ruled that Tom was entitled to reasonable visitation unless Kara and Jeff met their burden of proving "that visitation would endanger seriously the child's physical, mental, moral or emotional health." 750 ILCS 5/607(a) (West 1994).

At the time of the hearing, Brandon was nearly seven years old. He had been living with Jeff and Kara in Saukville, Wisconsin, since August 1994, and he had not seen Tom for 14 months. Brandon was in first grade, doing well in school, and participating in sports. Kara and Jeff both testified that when Tom had last had visitation, August 1994 through January 1995, the visits were quite disruptive to their family schedule. Both parents worked full-time, and the visits periodically interfered with Brandon's soccer and baseball activities. It is 270 miles from Saukville, Wisconsin, to Tom's place in Elmwood, Illinois, and the drive took 4 1/2 hours, or 2 1/2 hours to a drop-off Point in Rochelle, Illinois.

Kara and Jeff testified that Brandon exhibited nervous habits after he moved to Wisconsin, including bed-wetting, chewing, and biting. Brandon would get uncharacteristically quiet before visiting Tom. After the visits stopped, Brandon's bed-wetting and other nervous habits ceased.

Dr. Day, a clinical psychologist, testified that he performed psychological evaluations of Brandon and the parties in 1994 and found that the adults were all psychologically normal and all interested in Brandon's well-being. Dr. Day met again with Brandon briefly in January 1996. Based on his observations and teacher reports, Dr. Day concluded that Brandon was adapting well to Wisconsin. Brandon identified with Jeff and Kara as his "psychological parents." Back in 1994, Dr. Day had recommended some visitation take place to assist Brandon in the detachment process from his former life in Illinois and Tom, but he had recommended that the visitation stop after six months. Tom had now been absent from Brandon's life for 14 months, and Dr. Day believed that resuming visitation was not in Brandon's best interests, nor was it likely to strengthen the bond between Brandon and Tom. Brandon had previously told Dr. Day that he did not want to visit Tom, and Tom did not assume for him the role of psychological father. Visitation would create an "artificial construction" that "could have some very negative psychological effects on the child." When asked whether visitation would seriously endanger Brandon's emotional well-being, Dr. Day said there was the potential for that, depending on how Brandon's resistance to visitation was met by the adults in his life.

The court then interviewed Brandon in camera. Brandon shook his head when asked whether he remembered Tom, but nodded when asked whether he remembered Tom's new wife, Rhonda. Brandon simply shrugged when asked whether he wanted to visit Tom. The court directed a finding in favor of Tom at the close of Jeff and Kara's case, ruling that they did not meet their burden of showing that visitation would seriously endanger the child.

In the interim between the temporary visitation hearing and the custody hearing, Kara and Jeff remarried. Kara sought child support payments from Tom and Tom was ordered to pay $40 per week into a ...

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