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In re Parentage of J.W.

Supreme Court of Illinois

May 23, 2013

In re PARENTAGE OF J.W., a Minor Steve Taylor, Appellee,
v.
Amy Wills-Merrill (Jason Wills, Appellant).

JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

OPINION

THEIS JUSTICE

¶ 1 The issue in this appeal concerns the proper standard to be applied when a biological father seeks visitation privileges after a determination of parentage under section 14(a)(1) of the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/14(a)(1) (West 2010)). The circuit court of Vermilion County applied the best interests of the child standard set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/602 (West 2010)), and found that it was not in the minor child's best interests to have contact with her biological father at this time. The appellate court reversed, concluding that section 607(a) of the Marriage Act (750 ILCS 5/607(a) (West 2010)) is the relevant standard to be considered, entitling a noncustodial parent to a rebuttable presumption of reasonable visitation unless it can be shown that visitation would seriously endanger the child's physical, mental, moral or emotional health.

¶ 2 For the reasons that follow, we hold that in a proceeding to determine visitation privileges under section 14(a)(1) of the Parentage Act, the initial burden is on the noncustodial parent to show that visitation will be in the best interests of the child pursuant to section 602 of the Marriage Act. We therefore reverse the judgment of the appellate court.

¶ 3 BACKGROUND

¶ 4 In the summer of 2001, Amy Wills-Merrill and Jason Wills began an intimate relationship. During that same summer, unbeknownst to Jason, Amy had a one-time sexual encounter with Steve Taylor. Amy subsequently became pregnant and had a child, J.W., who was born on April 15, 2002. Amy assumed that the child's father was Jason. Jason signed a voluntary acknowledgment of paternity and was listed as the father on J.W.'s birth certificate.

¶ 5 Amy and Jason married in March 2003, when J.W. was almost a year old. The couple later divorced in 2006. They entered into a marital settlement agreement, which was incorporated into the dissolution judgment. Pursuant to the terms of their agreement, which identified Jason as J.W.'s father, Amy had sole custody of J.W., and Jason had visitation rights and child support obligations.

¶ 6 After the divorce, J.W. experienced a lot of chaos in her life. In September 2008, Amy married Joe Merrill, who had three children from a previous relationship. Meanwhile, that summer, Steve viewed a picture of J.W. on Amy's social media site, while seeking out old acquaintances. He saw a resemblance in J.W. and contacted Amy regarding the possibility that he was J.W.'s biological father. Thereafter, Steve, Amy, and J.W. submitted to DNA testing. About one week prior to Thanksgiving 2008, DNA results indicated Steve was J.W.'s biological father.

¶ 7 After receiving the DNA results, Amy temporarily separated from Joe, moved with J.W. from Catlin, Illinois, to Potomac, Illinois, where Steve resided, and placed J.W. in school there. Amy informed Jason that he was not the biological father. Over the holiday season, J.W. was introduced to Steve and his extended family and spent time with them between Thanksgiving 2008 and January 2009. J.W. was initially introduced to Steve and his family as friends, but was subsequently told by Amy at the end of December 2008 that Steve was her "real dad." Amy never discussed with J.W. her understanding of her relationship to Steve.

¶ 8 In January 2009, Jason sought a temporary modification of custody or, alternatively, an order prohibiting Amy from cohabiting with any male not her lawful spouse while having physical custody of J.W. Amy and Jason agreed to modify the judgment of dissolution. Under the modified order, Amy was prohibited from residing or cohabiting with Steve, prohibited from allowing J.W. to have any contact with Steve, and prohibited from promoting the existence of any parent-child relationship between Steve and J.W. until further order of the court.[1] Neither Steve nor his counsel was present or a party to that hearing in the dissolution proceeding. Thereafter, on February 4, 2009, Steve filed a verified petition to determine the existence of a parent-child relationship under the Parentage Act (750 ILCS 45/1 et seq. (West 2008)). In addition to establishing his paternity, Steve sought joint custody and visitation privileges pursuant to section 14(a)(1) of the Act.[2] 750 ILCS 45/14(a)(1) (West 2008). Jason did not contest Steve's petition to establish parentage, but sought a best-interests hearing on the issue of Steve's right to visitation with J.W. At that time, J.W. was almost seven years old.

¶ 9 On April 17, 2009, the trial court granted Steve's motion to consolidate the dissolution proceeding between Amy and Jason with his parentage action. The record reflects that the no-contact order was entered at that time. Steve's motion to appoint a guardian ad litem (GAL) for J.W. was also granted. Steve then filed a motion to vacate, modify, or reconsider the no-contact order. He argued that the order effectively barred him from any contact with J.W. in contravention of the relevant standards in determining his visitation rights under the Parentage Act. The trial court denied his motion. Meanwhile, a month after Steve filed his petition to determine paternity, Amy reunited with Joe and his three children. Amy and Joe later moved to Danville and had a child together.

¶ 10 On September 9, 2009, after additional DNA testing, the trial court entered a judgment declaring Steve to be the biological father of J.W. After an unsuccessful attempt at mediation, the court held a hearing on Steve's right to visitation with J.W. Dr. Marilyn Frey, a clinical psychologist, was appointed by the trial court to conduct an evaluation to determine whether visitation between Steve and J.W. was in J.W.'s best interests. Dr. Frey testified that in August and September of 2010, she interviewed Steve, Amy, and Jason and observed J.W. interact with Jason and Amy. Dr. Frey testified at the hearing consistently with her evaluation report. She stated that J.W. was bonded with both Amy and Jason, and that J.W. indicated that she enjoyed spending time with Jason and his son from a subsequent relationship.

¶ 11 Dr. Frey acknowledged that Steve and J.W. had some sort of a relationship at one time, but recommended that it would not be in J.W.'s best interests to have contact with Steve at this time. It was Dr. Frey's opinion that J.W. did not have the abstract reasoning skills at her age to understand Steve's relationship to her or how Jason was not her "biological" father, and that the information could seriously impact her relationship with her mother. Dr. Frey also believed that introducing another father figure into J.W.'s life could put J.W. at risk emotionally, socially and academically, affect her sense of adequacy with her peers, and create a fear of abandonment. She was concerned about J.W. being exposed at eight years old to information regarding her relationship to Steve in such a small rural community. In forming the basis of her opinions, Dr. Frey used dolls and teddy bears and had J.W. identify them with a person from her family. During these exercises, J.W. identified numerous extended family members, but did not mention Steve as part of her family.

¶ 12 Dr. Frey testified that the basis of her predictions of risk were based, in part, upon the developmental theories of Erikson and Piaget, and 44 years of clinical experience. She acknowledged that she did not have "hardcore evidence" or research that involvement with Steve would have a negative impact on J.W. Dr. Frey also acknowledged that at the time she interviewed J.W., J.W. had already been introduced to another father figure, her new stepfather, Joe, and that she did not exhibit any of the potential risks Dr. Frey expressed as concerns. However, Dr. Frey stated that the situation with a stepfather was not comparable. She acknowledged that it was possible that J.W. could have a good relationship with Steve and could receive the benefits of spending time with Steve's extended family. Dr. Frey also left open the possibility that at some time in the future it may be in J.W.'s best interests to be advised about Steve. In her report, Dr. Frey stated that "[o]nly with time and observation of and interactions with [J.W.] will it be possible to determine at what age she should be told about Steve."

¶ 13 Steve presented the testimony of Dr. Judy Osgood, a clinical psychologist retained by him to review Dr. Frey's report. Dr. Osgood reviewed the report and interviewed Steve in May 2011. Dr. Osgood testified that she believed that J.W. and Steve had spent a significant amount of time together and that it would be detrimental for J.W. to miss out on contact with Steve and his extended family, who showed J.W. love and affection. Dr. Osgood believed it was in J.W.'s best interests to resume contact with her biological father. In her opinion, Steve did not present any risk factors which would create any danger to J.W.

¶ 14 Dr. Osgood stated that, based upon the fact that J.W. was told Steve was her biological father, she believed that J.W. would question why he had now disappeared out of her life. It was her opinion that if J.W. could at least maintain a stable relationship with her biological father, that could be a constant in her life, where there had been a lot of inconsistency and instability. Dr. Osgood recommended that both J.W. and Steve meet with a counselor to assist J.W. in understanding that she was not going to lose her relationship with Jason, and believed that there could be a gradual progression of contact with Steve.

¶ 15 Dr. Osgood was critical of Dr. Frey for failing to observe J.W. and Steve together and believed that this interaction was a significant missing piece of Dr. Frey's evaluation. She did not agree that merely because J.W. did not mention Steve in the session with Dr. Frey that there was no bond between them. It was Dr. Osgood's opinion that the testing reflected the people that were currently in J.W.'s life, given the no-contact order, but did not mean that there was not a bond between them at one time, or that J.W. did not know her biological father. She believed it would be shortsighted to conclude that there was no bond. She found it significant that, although Steve was not allowed to continue contact with his daughter due to the court order, Steve's sister continued to provide child care to J.W. until March 2010, when J.W. moved to Danville. Dr. Osgood acknowledged that she did not know what J.W. currently understood about her relationship to Steve.

¶ 16 Dr. Osgood explained that she was not retained to engage in a best-interests visitation evaluation. Rather, she characterized her role as providing a psychological report on Steve and providing an opinion as to his "position and credibility" in requesting visitation with J.W. She was not provided with the GAL's report and did not have an opportunity to interview or evaluate J.W. She would have liked to have observed J.W. interact with Steve, but believed that the no-contact order prohibited her from observing them together. She further stated that she was not requested by counsel to evaluate them together.

¶ 17 Steve testified that he was employed with the railroad and resided in Potomac, Illinois, with his father. He has no other children and is not married. He has three sisters, who are all married with children. Upon finding out that J.W. was his biological child, he and his extended family were introduced to J.W. and engaged in many activities with her during the period from Thanksgiving of 2008 until January of 2009, when the court prohibited Amy from promoting a relationship between him and J.W. He introduced several photographs of their time together. Steve stated that he recognized that J.W. had many people in her life that loved her. He did not want to take away Jason's right to visitation or disturb the relationship J.W. had developed with Jason and with her current stepfather, Joe. Steve testified that he wanted to be a part of J.W.'s life, to get to know her, to watch her grow up, to teach her how to do certain things, and be there to support her. He further testified that he had provided financial support for J.W.'s care.

¶ 18 Stephanie Bishop, Steve's sister, testified that she started babysitting for J.W. after school in December 2008, when J.W. moved to Potomac and continued to provide child care until March 2010, when J.W. moved to Danville. Bishop and her sisters' families were originally introduced to J.W. as Amy's friends, and then, after Christmas 2008, they were referred to by J.W. as aunts and cousins and engaged in several activities together. Stephanie heard J.W. refer to Steve as "daddy" on many occasions.

ΒΆ 19 Clarendin McCarty was J.W.'s first-grade teacher while she lived in Potomac from December 2008 until May 2009. McCarty knew Steve from high school and was friends with one of Steve's sisters. McCarty testified that J.W. was very enthusiastic, academically a good student, and good with transitions. McCarty did not observe any anger or depression. J.W. spoke about two dads, "daddy Steve" and "daddy Jason, " and referred to Steve as her "real dad." In February 2009, Steve came to a ...


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