Appeal from the Circuit Court of Franklin County. No. 99-F-85 Honorable Leo T. Desmond, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
Charles Jines (plaintiff) sought visitation with minor children he had fathered with Anna Jurich (defendant). After a hearing, the circuit court of Franklin County entered an order awarding visitation to plaintiff. On appeal, defendant raises the following issues: (1) whether the trial court erred in placing a burden on defendant to prove that no visitation should be awarded and (2) whether the trial court's decision was against the manifest weight of the evidence. We affirm.
On September 29, 1999, plaintiff filed a petition in the circuit court of Jackson County, Illinois, to establish parentage and visitation. Subsequent to a motion to transfer venue, the case was transferred to the circuit court of Franklin County. At a hearing on December 16, 1999, the court determined that plaintiff was the father of the children, based on the parties' compliance with the Vital Records Act (410 ILCS 535/12 (West 1998)). The court then entered a temporary order awarding defendant custody and plaintiff visitation rights. On January 18, 2001, plaintiff filed a petition to establish a parent-child relationship and a petition for visitation. A hearing was held on May 9, 2001.
At the beginning of the hearing, the trial judge informed the parties of the burdens he was placing on them. Regarding visitation, the court stated:
"We are going to go into this with the thought in mind that visitation will be ordered, okay. It's going to be up to your client to show me, as she would have to under [s]section 607-I think that's the section of the divorce act, which applies here-that there is a serious endangerment to the child's mental, emotional, moral[,] or physical health that would require me to restrict [plaintiff's] visitation. In other words, going into this, he is going to get visitation, okay."
At the conclusion of the hearing, the court commented on the evidence regarding visitation:
"The burden of proof was on her to show a serious endangerment to these children's moral, emotional, [and] physical health. She has fallen more than woefully short of the mark; she hasn't even made out a case.
I have got a picture of the front of your house, which I guess I am supposed to conclude from that it's not a very attractive house, I don't know. Maybe there is some clutter in there, I don't know. They have been dancing around the edge of the pen about marijuana. There has been no evidence other than this photograph. And, incidentally, since I was in [sic] the only one in this room besides the [c]court [r]eporter and these two people-the lawyers weren't there at the last hearing-the marijuana wasn't just put in because of [plaintiff]; it was put in because of [defendant].
I made the finding, based on the evidence, that there had been marijuana usage by both parties, okay. If you will read the order, it doesn't say '[defendant].' It says no marijuana is to be used in front of the children. Now, I know one of them denied it, and the other denied it, but I am telling you I heard the evidence in the case. All right.
So, moving back here, I have got photographs of sores on feet. I have got testimony about a sore eye. I have got a little bit here, and a little bit there. What I don't have is[-]I don't have any medical evidence[;] I don't have any evidence of neglect or abuse. I don't have any psychological evidence. I don't have anything. I don't have diddly squat to show serious endangerment, unless I am just guessing that that might be the case."
The court entered a written order filed May 21, 2001. In the order, the court stated, "[T]he [c]court views [the order] as an initial determination of custody, visitation, and support, pursuant to [section 14 of the Illinois Parentage Act of 1984 (750 ILCS 45/14 (West 2000))], which requires the [c]court to make such determination in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. [(West 2000)])." The court then proceeded to award custody to defendant and ordered plaintiff to pay child support.
The order established a visitation schedule for plaintiff that included alternate weekends, summer visitation, certain weekday evenings, and ...