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Engelkens v. Engelkens

December 28, 2004

IN RE MARRIAGE OF DONALD L. ENGELKENS, JR., PETITIONER-APPELLANT,
v.
JERRI ENGELKENS, N/K/A JERRI BURDEN, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of the Fourteenth Judicial Circuit, Whiteside County, Illinois, No. 98-D-024, The Honorable Timothy Slavin, Judge Presiding.

The opinion of the court was delivered by: Justice McDADE delivered the opinion of the court:

Petitioner, Donald L. Engelkens, appeals the order of the circuit court for the Fourteenth Judicial Circuit, Whiteside County, Illinois, denying his request to terminate the visitation of respondent, Jerri L. Engelkens, n/k/a Jerri Burden, with Donald's son, Jacob Engelkens. For the reasons that follow, we reverse.

[9]     BACKGROUND

Donald and Jerri married in July 1995. In February 1998, the circuit court entered a judgment of dissolution of the marriage. According to the judgment of dissolution and the marital settlement agreement incorporated therein, one child, Tommy L., was born to Jerri during the marriage. The settlement agreement stated that Donald agreed to permit Jerri a reasonable opportunity to visit Jacob Engelkens, Donald's son from a previous relationship. In November 2000, Donald learned he was not Tommy's biological father. In March 2002, Donald and Jerri entered a temporary agreed order stating Jerri's visitation with Jacob was to occur every other Saturday or Sunday between noon and 7 p.m. In March 2003 Donald petitioned the court to terminate his support for Tommy and to terminate Jerri's visitation with Jacob. The petition argued that the statute granting visitation to stepparents had been found unconstitutional. The issue of support was not part of the hearing below and is not part of this appeal.

In April 2003, at the hearing on the petition to terminate visitation with Jacob, only Jerri testified. Donald and Jerri lived together before they were married. Jacob came to live with them when he was approximately four weeks old. Jerri testified that, after the divorce and approximately one year before the date of the hearing, she noticed marks or bruises on Jacob's body. The marks were on Jacob's back and appeared to have been made by a belt. Jerri made a report to the state. Jerri also noticed two bruises on Jacob's legs and knees approximately six months before the hearing and a bruise by his eye. Jerri notified Jacob's school. Jerri also testified she had confronted Donald regarding "mental abuse" of Jacob in that when Jerri had bought gifts for Jacob, Donald would "cut up" the item in front of him or make Jacob "cut it up." Specifically, a snowboard and a deck of "Uno" cards. Jerri testified that while the parties' divorce was pending, Jacob lived with Jerri for a six-month period. Jerri testified she voluntarily provided Jacob with health insurance continuously beginning in May 1998. Jerri never adopted Jacob. Jerri reported the suspected abuse to the state and Jacob's school, making seven reports over a 2 " year period.

Following argument, the trial court stated "the parties' agreement *** is based wholly or in part on [the] statute." In its written order, the trial court found as follows:

"1. [A] prior agreement for stepparent visitation was entered into by the parties on March 21, 2002.

2. The previous agreement of the parties [does not] defeat the unconstitutionality of the statute regarding stepparent visitation.

3. [T]here has been presented unrebutted evidence of [Donald's] physical and mental abuse of the minor child, Jacob.

4. [Donald] is unfit in this forum as it relates to this Petition brought before this Court.

5. Due to the unfitness of [Donald], this matter and the agreement of the parties falls within the narrow exception to the unconstitutionality of the statute.

6. The statute in these circumstances is constitutional. Therefore, the agreement entered into by the parties is based upon a constitutional statute.

7. The court does not find any substantial change in circumstances has been shown which would warrant a modification of the previous agreement of the parties."

The court ordered that the petition to terminate visitation was denied. This appeal followed.

ANALYSIS

Donald argues the circuit court lacked jurisdiction to enforce stepparent visitation because the statute governing stepparent visitation is unconstitutional. Jerri asserts that Donald "fails to recognize the authority of the trial court to utilize the narrow exception, delineated by the cases in the grandparent arena, when a stepparent can rebut the presumption that a parent acts in the best interest of his child." Jerri also argues that no court has declared section 607(b)(1.5) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(1.5) (West 2002)) facially unconstitutional and that statutes carry a strong presumption of constitutionality. The trial court has broad discretion in fashioning the terms of visitation and those terms will not be overturned absent proof that the court has abused its discretion. In re Marriage of Roberts, 151 Ill. App. 3d ...


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