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In re Marriage of Booth

April 13, 2001

IN RE MARRIAGE OF WILLARD A. BOOTH, PETITIONER-APPELLANT, AND LORI ANN BOOTH, N/K/A, LORI ANN HUNT, RESPONDENT-APPELLEE.


Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 99-D-464 Honorable Ludwig Kuhar Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

Not Released For Publication

IN RE MARRIAGE OF WILLARD A. BOOTH, PETITIONER-APPELLANT, AND LORI ANN BOOTH, N/K/A, LORI ANN HUNT, RESPONDENT-APPELLEE.

Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 99-D-464 Honorable Ludwig Kuhar Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

Petitioner Willard Booth appeals the trial court's decision granting respondent Lori Ann Booth, n/k/a Lori Ann Hunt, visitation privileges with his 14-year-old daughter. Because we determine that a parent may not bargain away the interests of a child by providing for stepparent visitation in a martial settlement agreement in contravention of Illinois law, we reverse.

 FACTS

Willard and Lori were married on November 23, 1991. At the time, Willard was the custodial parent of Brittinie, his five-year-old daughter who was the product of a previous marriage. In the spring of 1999, Willard filed a petition for dissolution of marriage. On October 14, 1999, the trial court entered an agreed order for dissolution of marriage. The order included a marital settlement agreement, which included a provision that stated "[w]ife is hereby awarded reasonable visitation with her step-daughter, Brittinie Booth, upon reasonable advanced notice."

Several months later, Lori filed a petition seeking to have the court order a specific visitation schedule. Thereafter, Willard retained new legal counsel and filed a petition for relief from the judgment. In his petition, Willard claimed that he consented to stepparent visitation without being properly informed by his former counsel of the terms of section 607(b)(1.5) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/607(b)(1.5) (West 1998)), a recently enacted statute that governs stepparent visitation. He requested that Lori be enjoined from visitation with Brittinie and that the October 14, 1999, judgment be vacated or, at a minimum, the provision regarding visitation be stricken. Willard's motion was dismissed by the court for failure to raise the issue prior to judgment.

At the hearing on Lori's petition to set a visitation schedule, Willard testified that his previous attorney advised him to agree to reasonable visitation, but did not advise him to discuss the matter with Brittinie first. Willard admitted that although he first saw the proposed written agreement on the same day the court entered its order, he approved the settlement and specifically acknowledged the provision regarding stepparent visitation. Even though the agreement provided for reasonable visitation, Brittinie and Lori have seen each other only two times since the divorce.

Lori testified that after she married Willard, she became Brittinie's primary caregiver while Willard worked. She attended Brittinie's school and sports activities, and helped her with her homework. When Brittinie was older, they had a regular "girls night out." After the separation, they went shopping together on one occasion, and she sent Brittinie cards and gifts. Although she has repeatedly attempted to make arrangements to visit Brittinie, Willard has prevented them from seeing each other.

The court conducted an in camera interview of Brittinie. Brittinie stated that she is 14 years old and that she was never told that her father had planned to agree to visitation. When asked whether she wanted to see Lori, she stated "I don't want to go and see her" and "I don't want to be forced to see her." Brittinie also stated "I really don't get along with her. I don't know why, but she's [sic] just scares me." Brittinie also stated that she sees her natural mother and her half-brother almost every weekend and gets along well with them.

Shortly thereafter, the trial court ordered that Lori be granted visitation every other Monday evening, although no visitation was ordered during summer ...


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