Appeal from Circuit Court of Vermilion County No. 09F12 Honorable Karen E. Wall, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
JUSTICE KNECHT delivered the judgment of the court, with opinion. Presiding Justice Turner and Justice Appleton concurred in the judgment and opinion.
¶ 1 In the summer of 2001, respondent, Amy Wills-Merrill, conceived a child, J.W., who was born in April 2002. Amy married respondent, Jason Wills, in March 2003, believing him to be the father of J.W. The couple divorced in January 2006 and Amy had physical custody of J.W. In 2008, petitioner, Steve Taylor, contacted Amy after seeing a photograph of J.W. and asked if she could possibly be his child. Amy answered in the affirmative. Deoxyribonucleic acid (DNA) tests were conducted with the result being a match for Steve as the father of J.W. In February 2009, Steve filed a parentage action pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2008)) to determine the existence of a father and child relationship between himself and J.W.
¶ 2 Meanwhile, in the dissolution action between Amy and Jason, the trial court entered an order at Jason's request ordering Amy to not reside or cohabit with Steve or permit him to have contact with J.W. At Steve's request, the two cases were consolidated in April 2009. In September 2009, an order of parentage was entered as to Steve. No visitation was ordered.
¶ 3 In preparation for a hearing on Steve's request for visitation with J.W., the guardian ad litem (GAL) prepared and filed reports on behalf of the minor, and a clinical psychologist also prepared a report. Due to J.W.'s young age and the fact she had a strong relationship with Jason but no prior relationship with Steve, the psychologist and the GAL both recommended no visitation for Steve at the present time. In July 2011, the trial court denied Steve's request for visitation and reserved the issue of child support.
¶ 4 Amy filed a motion to reconsider the trial court's order as to a specific point, and a clarified order was entered in October 2011. In January 2012, the parties entered an agreed order as to child support. In February 2012, Steve filed his notice of appeal, claiming the court erred in requiring him to have the burden of proving visitation was in J.W.'s best interest and the court erred in not granting him any visitation. We reverse and remand with directions.
¶ 6 In June 2001, Jason and Amy began an intimate relationship. Jason enlisted in the United States Army and was soon stationed away from central Illinois. During that same summer, Amy had a one-time sexual encounter with Steve. When she became pregnant, Amy assumed the father of the child was Jason. Jason supported Amy throughout her pregnancy although he was stationed in North Carolina. J.W. was born on April 15, 2002, and Jason was listed as her father on the birth certificate.
¶ 7 On March 14, 2003, Amy and Jason were married in North Carolina. During his military career, Jason served in both Iraq and Afghanistan. On November 5, 2003, Jason was severely injured in Iraq. In December 2003, Jason, Amy, and J.W. returned to Danville, Illinois. They remained together until January 6, 2006, when a dissolution of marriage was granted. Pursuant to the terms of the marital settlement agreement, which stated Jason to be J.W.'s father, Amy was granted sole custody of J.W. but Jason had visitation privileges and support obligations regarding J.W.
¶ 8 In the summer of 2008, Steve saw a picture of J.W. on Amy's account on a social media site. He thought J.W. resembled him and contacted Amy regarding the possibility he was J.W.'s biological father. Amy indicated there was a possibility, which prompted Steve, Amy, and J.W. to submit to DNA testing in the fall of 2008. In September 2008, Amy married Joseph Merrill. Between the summer of 2001 and the summer of 2008, Steve had limited, if any, contact with Amy and no contact with J.W. and had no reason to believe he was J.W.'s father.
¶ 9 When the DNA results indicated Steve was J.W.'s father, Amy left Merrill and began a relationship with Steve. She also notified Jason in November 2008 he was not J.W.'s biological father. At this point in time, J.W. was 5 1/2 years old and Jason was the only father she had ever known. They had a good, close relationship.
¶ 10 Amy decided J.W. should get to know Steve. J.W. spent a lot of time with Steve and his extended family over the holiday season from late November 2008 to January 1, 2009. On February 4, 2009, Steve filed a verified petition to determine the existence of a father-child relationship pursuant to the Parentage Act (750 ILCS 45/1 et seq. (West 2008)) in Vermilion County circuit court case No. 09-F-12. In addition to the establishment of paternity, Steve asked for joint custody of J.W. and visitation.
¶ 11 On January 9, 2009, in Vermilion County case No. 05-D-232, the dissolution of marriage case for Jason and Amy, the court entered an order stating Amy shall not reside or cohabit with Steve or permit J.W. to have any contact with Steve or promote the existence of any parental relationship between Steve and J.W. On February 17, 2009, Steve filed a motion to consolidate the dissolution proceeding between Jason and Amy with his parentage action since both cases were dealing with custody and visitation issues involving J.W. On March 5, 2009, prior to the court granting Steve's motion to consolidate, Jason filed a motion in the parentage case asking for, in the event Steve was determined to be J.W.'s biological father, a hearing to determine the best interests of J.W. before visitation was granted between Steve and J.W.
¶ 12 On April 17, 2009, the parentage action was consolidated with Jason and Amy's dissolution case and a written order was entered embodying the order barring contact between Steve and J.W. as entered in the dissolution case on January 9. On May 13, 2009, Steve filed a motion to vacate, modify, or reconsider the order barring him from any contact with J.W.
¶ 13 On September 9, 2009, in the consolidated cases, the trial court entered an order of parentage as to Steve. However, the court indicated it was not ordering any visitation in the paternity case. The court further stated all previous orders would stand and be enforced. Discovery commenced prior to a hearing on the issue of visitation between Steve and J.W. Financial information for Steve, Amy, and Jason was also gathered for determining child support.
¶ 14 Dr. Marilyn Frey, a clinical psychologist, was approved by all parties and appointed by the trial court to conduct an evaluation to determine whether visitation with Steve and J.W. was in the best interests of J.W. at this time. On October 8, 2010, Dr. Frey filed her report with the court. Dr. Frey interviewed Steve, Amy, and Jason and observed J.W. interact with Jason and Amy. Dr. Frey found no real attachment between J.W. and Steve. J.W. never mentioned Steve when asked by Dr. Frey to name members of her family. Further, Dr. Frey found for a child of J.W.'s young age, introducing Steve to her as her father would be disruptive of her established close relationship with Jason and could easily result in difficulties academically, emotionally, and psychologically as children of that age are very attuned to having their lives function in an orderly manner and wanting to ...