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In re Marriage of Casarotto

September 22, 2000


Appeal from the Circuit Court of Cook County. No. 91-D-4178 Honorable Edmund Ponce De Leon, Judge Presiding.

The opinion of the court was delivered by: Justice Theis

At issue in this case is whether the circuit court may order visitation between a mentally disabled adult and his estranged father under the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 1998)). Kevin Casarotto, who was an adult at the time the visitation order at issue was entered, has Down's syndrome. Although Kevin expressed his desire not to see his father, appellee Edmund Casarotto, the circuit court ordered visitation between Kevin and his father. Appellants, Rita Casarotto, Kevin's guardian, and the office of the Cook County public guardian, which was appointed guardian ad litem, appeal from the visitation order on Kevin's behalf, contending that the visitation provisions of the Marriage Act are applicable only to minor children and the circuit court therefore lacked subject matter jurisdiction to enter an order of visitation as to an adult disabled person. Additionally, appellants contend it is unconstitutional to order visitation over the objections of an adult disabled person. For the reasons that follow, we conclude that the circuit court, acting under the Marriage Act, does not have authority to enter an order of visitation with respect to a disabled adult and the order requiring visitation between Kevin and his father is therefore void for lack of subject matter jurisdiction. As a result, we do not reach the constitutional issues raised in this appeal.

Though somewhat complex, the procedural history of this case is essential to resolution of issues raised by the parties. Kevin Casarotto was born on July 29, 1975, to Rita and Edmund Casarotto. In September 1993, the marriage between Rita and Edmund was dissolved. Pursuant to the judgment in dissolution of marriage, Rita was given full custody of Kevin and Edmund was given reasonable visitation. At the time the judgment of dissolution was entered, Kevin was 17 years old.

In September 1997, Rita was appointed as Kevin's plenary guardian and the circuit court authorized Kevin's placement in Misericordia Heart of Mercy, where he has lived since March 1998.

In January 1998, Edmund filed a motion for modification of visitation alleging that he had not been able to see Kevin since January 1, 1997, and seeking an order specifying dates and times when visitation would occur. On January 16, 1998, the circuit court granted Edmund's motion. In doing so, the court noted that visitation with Edmund was in "the child's best interest" and that it had jurisdiction to modify the visitation order. At the time this order was entered, Kevin was 22 years old.

In November 1998, Rita filed a "Second Emergency Motion to Terminate or Suspend Visitation." Although no transcript of proceedings was included in the record on appeal, the circuit court's November 17, 1998, order set forth various factual findings. The circuit court found that Kevin was competent to testify, that he could articulate his thoughts, and that his testimony was relevant and credible. Valerie Casarotto, Kevin's 25-year-old sister, also testified. The circuit court found that her testimony regarding Edmund's long history of utilizing corporal punishment gave credibility to Kevin's statements that Edmund hit him. The circuit court further found that Edmund exercised "extraordinarily poor judgment" in taking Kevin on a spur-of-the-moment, out-of-state trip which necessitated 18 hours of driving and sleeping in the car to "teach Kevin a lesson." Accordingly, the court found "by clear and convincing evidence" that further visitation with Edmund would endanger Kevin. The circuit court "suspended" all visitation including telephone contact and ordered that visitation

"[M]ay be reinstated only if:

a. The Court appoints a 604(b) custody evaluator.

b. The evaluator recommends visitation be reinstated with the father.

c. The Court orders that visitation be reinstated and that the father comply with any recommendations made by the evaluator."

The circuit court referred to Kevin, who was 23 years old at the time, as a "dependent child."

On September 30, 1999, the circuit court reinstated visitation within the parameters set forth in the section 604(b) (750 ILCS 5/604(b) (West 1998)) report prepared by Dr. Abigail Sivan. The circuit court further ordered that visitation be supervised and take place at Misericordia. The circuit court noted that the issue before it was not whether visitation was in Kevin's best interest. Rather, the court concluded that the issue was enforcement of the November 17, 1998, order, which had been entered by a different judge. According to the court's interpretation of that order, visitation would be allowed if Edmund met the conditions specified therein. The parties did not dispute that Kevin, who was 24 years old at the time the order was entered, expressed that he did not want to see his father, Edmund.

On appeal, Kevin contends that the circuit court lacked subject matter jurisdiction to enter a visitation order pursuant to the Marriage Act because he was no longer a minor at the time the visitation order was entered. He also argues that the circuit court cannot constitutionally order an adult disabled person to visit with a person whom he does not wish to see.

Our supreme court recently detailed the contours of subject matter jurisdiction in In re Estate of Gebis, 186 Ill. 2d 188, ...

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