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J.S.A. v. W.T.H.

August 19, 2003

J.S.A., PLAINTIFF-APPELLANT, AND W.T.H., MINOR CHILD-APPELLANT,
v.
M.H. AND W.C.H., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois No. 99-F-420 Honorable Ludwig Kuhar, Judge, Presiding

The opinion of the court was delivered by: Justice Lytton

UNPUBLISHED

Plaintiff, J.S.A., filed a petition to determine the existence of a parent-child relationship with W.T.H. Defendant, M.H., gave birth to W.T.H. during her marriage to co-defendant, W.C.H. Defendants filed a motion for a "best interest" hearing and asked the court to dismiss plaintiff's petition. The court held a best interest hearing and subsequently dismissed plaintiff's petition. The court also issued a protective order prohibiting the parties from publicly discussing the case and ordering plaintiff not to contact the child. We reverse and remand the dismissal of plaintiff's parentage petition but affirm the issuance of the protective order.

FACTS

Plaintiff and defendant, M.H., are attorneys who shared office space with each other. Both were married, but from 1993 to 1998, they were engaged in an extra-marital sexual affair. M.H. became pregnant in 1995. At that time, she was having sexual intercourse with her husband and plaintiff. In January 1996, M.H. gave birth to W.T.H.; her husband was listed as the father on the birth certificate.

In January of 1999, following the termination of the affair, a deoxyribonucleic acid (DNA) test allegedly proved that plaintiff was the child's biological father. Several months later, plaintiff filed a petition to determine the existence of a parent-child relationship under the Illinois Parentage Act of 1984 (Act). See 750 ILCS 45/7(a) (West 2000). At defendants' request, the court held a best interest hearing to determine whether it was in the child's best interest to order DNA testing.

The court concluded that the best interest of the child would be served by denying plaintiff's request for DNA testing and dismissing his parentage petition. The court also issued a protective order barring the parties from publicly discussing the case and prohibiting plaintiff from contacting the child.

ANALYSIS

I. Preliminary Procedural Issues

We begin by addressing three procedural issues raised by defendants. All of the issues are questions of law, and we review them de novo. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

Defendants contend that plaintiff's appeal was not filed in a timely manner. They argue that the status of the parties was finally determined on November 21, 2001, when the trial court issued its findings of fact. Plaintiff filed his notice of appeal on January 4, 2002, more than 30 days after the determination.

Supreme Court Rule 303(a)(1) requires an appeal to be filed within 30 days after the entry of a final judgment. 155 Ill. 2d R. 303 (a)(1) (2002). A judgment is final if it fixes absolutely and finally the rights of all parties. In re Marriage of Carr, 323 Ill. App. 3d 481, 483 (2001).

The trial court issued oral findings of fact on November 21, 2001, but entered a written order adopting those findings on December 7, 2001. Plaintiff filed his appeal within 30 days of that written order. Furthermore, the trial court entered a nunc pro tunc order on January 4, 2002, to amend the December 7 order to include language making that order appealable. Since the notice of appeal was filed within 30 days of the final order, the appeal is timely.

Defendants also challenge plaintiff's standing to bring a parentage petition. Defendants argue that, since they were married to each other when the child was born, W.C.H. is presumed to be the father, therefore plaintiff's petition should have been an ...


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