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In Re Parentage of Scarlett Z.-D., A Minor v. Maria Z

August 30, 2012


Appeal from the Circuit Court of Du Page County. No. 08-F-451 Honorable Timothy J. McJoynt, Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.


¶ 1 Petitioner, James R.D. (Jim), appeals from the trial court's dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)) of his contract claims and from the court's denial, following trial, of his claims for custody, visitation, and child support. For the following reasons, we affirm.


¶ 3 Jim and respondent, Maria Z. (Maria), began living together as a couple in 1999. They became engaged in 2000 or 2001. In early 2003, Maria went to Slovakia to visit family. While there, she met Scarlett, a 31/2 -year-old orphan girl. Maria commenced the process of adopting Scarlett under Slovakian law. During the year-long adoption process, Maria lived in Slovakia.

Under Slovakian law, Jim was not permitted to adopt Scarlett because he was neither a Slovakian national nor married to Maria, but he was involved in the process and traveled to Slovakia approximately five times during that period. In 2004, Maria returned to the United States with Scarlett, and the parties lived together with Scarlett as a family. The parties never married, and neither took any steps to obtain recognition of the adoption in Illinois. Jim did not adopt Scarlett.

¶ 4 By August 2008, the parties' relationship had deteriorated, and Maria moved out with Scarlett. On August 22, 2008, Jim filed a petition for declaration of parental rights, which the trial court struck on Maria's motion. Jim subsequently filed an "Amended Motion and Petition for Adoption," which the trial court allowed him to withdraw. On May 11, 2009, Jim filed the action to establish parentage at issue here. In count I, Jim requested a declaration of parentage and an order granting the parties joint legal and physical custody or, alternatively, granting him primary custody with reasonable visitation for Maria. In count II, Jim sought an equitable division of child support between the parties. Counts III through VI, entitled breach of oral agreement, promissory estoppel, breach of implied contract in fact, and breach of implied contract in law, respectively, each prayed for relief in the form of custody, visitation, and child support determinations.

¶ 5 On May 29, 2009, Maria filed a section 2-615 motion to dismiss, alleging, inter alia, that Jim's petition failed to state a cause of action because it did not address the threshold question of Jim's standing under either section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/601(b)(2) (West 2010)) or section 7 of the Illinois Parentage Act of 1984 (750 ILCS 45/7 (West 2008)). Jim filed a response, arguing that a section 2-615 motion was not the proper vehicle to raise the issue of standing and that Maria had, therefore, waived her standing argument. The trial court entered an order allowing Maria to file a memorandum in support of her section 2-615 motion, if she so desired. Within the time allowed for that memorandum, Maria instead filed a section 2-619 (735 ILCS 5/2-619 (West 2010)) motion to dismiss, asserting lack of standing under section 601 of the Dissolution Act, based on the affirmative matter that Scarlett had always been in Maria's physical custody since her adoption. Jim moved to strike Maria's section 2-619 motion.

¶ 6 On August 25, 2009, the trial court heard argument on Jim's motion to strike Maria's section 2-619 motion. In addition to arguing that the motion was untimely, Jim contended that Maria improperly raised the affirmative defense of standing in her section 2-615 motion to dismiss and had, therefore, waived the standing defense. The court began by asking Jim's counsel, "So if I let [Maria's counsel] replead and relabel it [section 2-]619, are we right back where we started?" After hearing the parties' arguments, the court noted that "standing is the linchpin of the attacking motions that were up for hearing." The court reasoned that, "whether it's a 2-615 or a 2-619, I think it's been adequately pled in a timely fashion." The court found that the issue of standing was not a surprise to Jim. The court concluded that "[t]here's been no waiver." The court then offered Jim the option of allowing Maria to refile her section 2-615 motion as a section 2-619 motion so that Jim could supplement his response "with affidavits and the like." Jim's counsel asked if a temporary visitation order could be entered if they chose to replead, and the court said no. Maria's counsel reminded the court that Maria had already filed the section 2-619 motion. Jim then opted to accept the additional time offered to submit affidavits and file a response to Maria's section 2-619 motion, which he did.

¶ 7 On October 7, 2009, the trial court heard argument on both of Maria's motions to dismiss. The court denied Maria's section 2-619 motion in its entirety. With respect to Maria's section 2-615 motion, the court denied the motion as to counts I and II. However, the court granted the motion to dismiss counts III through VI, concluding that there was no common-law cause of action for paternity, that the claims did not meet the elements of contract law, and that the purported contracts "could be void [as] against public policy."

¶ 8 From that portion of the court's October 7, 2009, order denying her section 2-619 motion to dismiss, Maria filed a petition for leave to appeal to this court. We denied the petition as untimely. In re Scarlett Z-D., No. 2-09-1280 (2009) (unpublished order under Supreme Court Rule 23).

¶ 9 Thereafter, the case proceeded on counts I and II of Jim's petition. Maria filed her answer to Jim's petition, raising the affirmative defense of standing. The court appointed a guardian ad litem (GAL) and ordered the parties to attend mediation. On the GAL's motion, the court ordered that Jim have supervised visitation with Scarlett. Scarlett attended counseling. The court appointed a custody evaluator. Later, the court appointed a visitation facilitator to facilitate visits and make a report of her observations.

¶ 10 Trial commenced on May 10, 2011, spanning 17 days of testimony over 7 months. The parties presented extensive evidence. The witnesses included the parties, Dr. Shapiro (the custody evaluator), Dr. Warren (the visitation facilitator), and Joseph Beck (the GAL), as well as many friends, neighbors, and relatives of the parties. Numerous exhibits were admitted, including Dr. Shapiro's custody evaluation, Dr. Warren's observation notes, family photographs and videos, and Scarlett's school records and art work.

¶ 11 The parties rested their respective cases on December 16, 2011. The court granted Maria's previously filed motion for an in camera interview of Scarlett, and conducted the interview that day. On January 23, 2012, the parties submitted written closing arguments. On February 9, 2012, the court granted Maria's motion to supplement her closing argument with the February 2, 2012, decision in In re Marriage of Mancine, 2012 IL App (1st) 111138, pet. for leave to appeal pending, No. 113978 (filed Mar. 8, 2012).

¶ 12 The trial court entered its written opinion and order on February 29, 2012. The court found that "for a long time during and after the adoption of [Scarlett], Jim and Maria lived together with the child as an intact family unit as if they were bound legally." The court found that Jim and Maria planned and participated in the adoption together and that Jim paid for it all and supported Maria during the process. The court found that Jim never adopted Scarlett but that the parties had discussed it. The court stated, "The reasons for these inactions are basically unknown except for the 'falling out' Jim and Maria had some time later." The court found that, for four years or more, Scarlett lived with Jim, called him "daddy," and looked to him as a father figure. The court concluded that Jim was "a fit and proper person" to have visitation or custody. The court found that, after Maria separated from Jim and took Scarlett with her, Scarlett "expressed a desire to continue to see Jim[,] and Maria prevented and blocked such contact." The court believed that the GAL's request for visitation early in the case reflected Scarlett's desires at that time. The court found "considerable evidence that taking Jim out of [Scarlett's] life in 2008 was not good for [her]." The court noted that Dr. Warren, who had observed over 50 visits between Jim and Scarlett, and Dr. Shapiro, who had evaluated Scarlett, both concluded that Jim and Scarlett shared a bond and that Maria had alienated Scarlett from Jim. The court stated that it disregarded the in camera interview with Scarlett because it "became immediately obvious to the court that the child was committed to telling the court that she no longer want[ed] to see Jim." The court concluded that Scarlett had been "coached" and "corrupted" and that these were not "her true thoughts." The court said, "[I]t is obvious that the court is unhappy with Maria's conduct in this case and is quite sympathetic to Jim's position. And more importantly, the court is very concerned that finding against Jim will take him out of [Scarlett's] life and that this will be bad for [her] and not in her best interests."

¶ 13 Still, the court noted that it was "bound to follow the law as it exists now" and that, despite its concerns regarding best interests, it could not, under current law, reach that issue without first finding that Jim had standing. The court observed that "the standing issue never really changed in the trial." The court found that "Maria correctly argue[d] she is the sole parent and Jim has no statutory legal standing." The court also noted Maria's constitutional right to parent "the way she chooses-good or bad," but expressed concern about Scarlett's right "to have a decent life." The court remarked that "these situations *** need legislation badly" but that it was "without authority to invent new common[-]law theories or somehow create judicial legislation." The court concluded that, especially under Mancine, it had no basis to find that Jim had standing. The court denied counts I and II of Jim's petition and vacated all of its prior orders regarding visitation and counseling.

¶ 14 Also on February 29, 2012, the trial court denied Jim's oral motion for a stay of that portion of its order vacating all prior visitation and counseling orders. Jim timely appealed from the court's denial of his petition. He subsequently filed an emergency motion in this court pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2004), seeking to stay the trial court's order vacating its previous orders for visitation and counseling, which we granted.

ΒΆ 15 Thereafter, we granted leave to the American Civil Liberties Union of Illinois and, jointly, to the Family Institute at Northwestern University, the Chicago Appleseed Fund for Justice, and the Family Equality ...

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