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Donath v. Buckley

February 20, 2001

DANIEL D. DONATH, PLAINTIFF-APPELLEE,
v.
DEANNA BUCKLEY, BY MARRIAGE, CADY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois No. 96 F 502 Honorable Erik I. Blanc Judge, Presiding

The opinion of the court was delivered by: Justice McDADE

Defendant, Deanna Buckley (k/n/a Deanna Cady), appeals from the April 17, 2000, order in which the trial court denied her Petition to Declare the Non-Existence of the Parent/Child Relationship on the basis that the Petition was barred by the statute of limitations, and required the parties to either reach an agreement or set a hearing on the issue of an appropriate visitation schedule. The Court finds that the trial court applied the appropriate statute of limitations. The decision is affirmed.

FACTS

On October 18, 1996, the plaintiff, Daniel Donath (Daniel), filed a Petition to Establish Parent and Child Relationship by Consent of the Parents. This Petition was signed by the Defendant, Deanna Buckley . On November 27, 1996, the trial court entered an order granting the Petition and declaring that a parent-child relationship existed between 14-month old Katelin Donath (Katelin) and Daniel. This order gave permanent care, custody and control of Katelin to Deanna, but allowed Daniel visitation rights.

On February 1, 1999, Deanna filed a Petition to Declare the Non- Existence of the Parent/ Child Relationship (Petition), stating that Daniel was not Katelin's biological father. On March 2, 1999, Daniel petitioned the court for enforcement of his previously granted visitation, and answered Deanna's Petition, averring his belief that he was Katelin's biological father. A deoxyribonucleic acid (DNA) test was ordered on April 13, 1999, and completed on May 7, 1999. The test found the probability of biological paternity to be zero percent (0%).

On September 22, 1999, Deanna petitioned the court to vacate its earlier order granting visitation to Daniel. The petition was denied on December 9, 1999. In the meantime, Daniel had filed a petition for enforcement of the visitation on December 6, 1999. In response to this petition, Deanna filed a motion to dismiss, stating that Daniel had always known he was not Katelin's biological father. In response to this motion, Daniel admitted, apparently because of the DNA results, that he did not have any statutory right to visitation, but pled affirmatively that Illinois courts have allowed visitation by a non- parent over a parent's objection, where it was in the best interest of the child. He contended that he had built a relationship with Katelin, who was now three years old, and that maintenance of that relationship was in her best interest.

Hearings were held on March 3, and April 14, 2000, on Deanna's Petition. Deanna testified that she and Daniel knew from the time she was pregnant that he was not the biological father of Katelin, and that she had done nothing to deceive him. However, Daniel testified that he always believed he was Katelin's biological father and had no reason to question his belief until he read court documents challenging that status in February 1999. It was also alleged that Daniel had improperly touched Katelin and had physically abused Deanna. Daniel denied any improper touching of Katelin, and testified that DCFS had ruled the claim was "unfounded." Daniel did not deny physically abusing Deanna.

Daniel also testified that he had resided with Deanna for several periods of time, and that he visited Katelin every other weekend and every other holiday for the first year of her life when he was not residing with Deanna. He also testified that he participated in activities with Katelin, celebrated occasions such as her first birthday, her first Halloween, her first Christmas, and her first Easter. Daniel called his sister and brother-in-law, with whom he was residing, to testify on his behalf. They both testified that Daniel was a good father who actively participated in the care of Katelin, and that Katelin referred to him as "Daddy."

On April 17, 2000, the trial court entered an order denying Deanna's Petition, stating that the challenge was barred by the statute of limitations. The order required the parties to set a hearing on the issue of visitation if they could not agree on an appropriate schedule. The court directed that Daniel's visitation with Katelin should initially be supervised.

The issues raised by Deanna on appeal are: 1) whether the trial court properly denied her Petition as barred by the applicable statute of limitations, and 2) whether the court complied with statutory provisions and case law in allowing Daniel visitation with Katelin.

ANALYSIS

The trial court's interpretation of a statute is reviewed de novo. Russell v. Department of Natural Resources, 183 Ill. App. 3d 434, 701 N.E.2d 1056 (1998).

The Appropriate Statute of Limitations

The Illinois Parentage Act (750 ILCS 45/7), governs the determination of father and child relationships, and of who may bring actions regarding that relationship. Section 8 of the same act addresses the appropriate ...


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