In re Parentage of J.W.
No. 114817
Supreme Court of Illinois
May 23, 2013
2013 IL 114817
Caption in Supreme Court: In re PARENTAGE OF J.W., a Minor (Steve Taylor, Appellee, v. Amy Wills-Merrill (Jason Wills, Appellant)).
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
The Parentage Act provides that, after a finding of biological fatherhood, a visitation request is evaluated in accordance with the Marriage Act; and the Proper provision thereof to apply is section 602, which lists factors to consider in determining the best interests of the child, rather than section 607(a), which gives a noncustodial parent a rebuttable presumption of reasonable visitation absent a showing that this would endanger the child.
Decision Under Review
Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Karen E. Wall, Judge, presiding.
Judgment
Appellate court judgment reversed.
Circuit court judgment affirmed.
David Sotomayor, of Orland Park, for appellant.
James A. Martinkus, of Erwin, Martinkus & Cole, Ltd., of Champaign, for appellee.
Robert F. Harris, Kass A. Plain and Christopher Williams, of the Office of the Cook County Public Guardian, of Chicago, for amicus curiae Cook County Public Guardian.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, and Diane Potts, Deputy Attorney General, of Chicago, of counsel), for amicus curiae Illinois Department of Healthcare and Family Services.
Camilla B. Taylor, of Chicago, for amicus curiae Lambda Legal Defense and Education Fund, Inc.
Justices
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
¶ 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
¶ 2 For the reasons that follow, we hold that in a proceeding to determine visitation privileges under
¶ 3 ¶ 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
¶ 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
¶ 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
¶ 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.
¶ 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 Valentine‘s Day party at the school. Steve‘s two nephews were also in the same class as J.W. at the school.
¶ 20 After hearing the evidence, the trial court allowed the GAL an opportunity to comment on whether the evidence presented at the hearing had changed his recommendations previously set forth in his report filed in June 2009. The report was admitted into evidence at the hearing. Therein, the GAL indicated that he met with J.W. in June 2009. At that time, he expressed concern with regard to all of the changes in J.W.‘s life, including the divorce, her mother‘s remarriage to Joe, being taken abruptly out of her school, and being removed from her home and placed with a new set of children in a new school. The GAL noted that during the meeting with J.W. in June 2009, J.W. did not include Steve as someone in her family, when given an opportunity to tell him about her family. When asked about what was new in her life or if there were any surprises, J.W. did not mention Steve in her life. When asked about her babysitter, if the babysitter had any brothers, and if Steve was the babysitter‘s brother, J.W. responded that Steve was the babysitter‘s friend and her mother‘s friend.
¶ 21 The GAL further found that J.W. had a very strong bond with Jason. The GAL did not believe that Steve posed any serious endangerment to J.W., but was concerned that introducing him into J.W.‘s life could detrimentally impact her stability. He recommended that it was not in J.W.‘s best interests to be introduced to Steve at this stage in her life. However, if the court were to order visitation, he believed it should be gradual and with extensive counseling. At the hearing, he acknowledged that his opinions were based upon his perspective, without having a degree in psychology. He essentially deferred to the
¶ 22 Amy did not testify at the hearing.
¶ 23 The trial court determined that based upon this court‘s precedent, Steve had the burden of proving that visitation would be in J.W.‘s best interests by a preponderance of the evidence. The court applied the “best interests” factors as set forth in
¶ 24 The trial court considered that Steve sincerely sought to establish a close parent-child relationship and desired visitation. The court indicated that Amy‘s desire was unclear, having taken conflicting positions. At the time of the GAL report, she seemed desirous of visitation, but at the time of trial, she did not support Steve‘s efforts to obtain visitation. The court also noted Jason‘s opposition to Steve‘s visitation with J.W.
¶ 25 With respect to the experts, the court found Dr. Frey‘s opinions more persuasive than those of Dr. Osgood. The court noted that Dr. Frey‘s observations of J.W. did not support an existing close relationship between Steve and J.W. and that Dr. Frey‘s explanations regarding J.W.‘s inability to process Steve‘s relationship to her and the increased risk it posed were credible. The court further found Dr. Osgood‘s opinions not persuasive because she did not perform any independent testing of J.W. and relied instead upon her impressions related by Steve of a close and loving relationship.
¶ 26 The court indicated that the most weight was given to what J.W. perceived at the time of her evaluation. The court found that based upon Dr. Frey‘s testing and the GAL interview, J.W. did not understand Steve to be her father. She identified Jason as her father because of their long-standing loving relationship. The court noted that Steve had no regular contact with J.W. since January 2009 and his involvement was limited to a five- or six-week period of time, where much of that time he was thought to be a family friend. The court was concerned about the increased risk of harm if the court disregarded J.W.‘s current lack of understanding of the situation. Based on these findings, the court held that it was not in J.W.‘s best interests for Steve to be introduced or reintroduced into her life at this time.
¶ 27 In ruling, the court also considered Steve‘s argument that under
¶ 28 The court denied Steve‘s petition for visitation, and ordered that all parties and their families not promote the existence of a parental relationship between Steve and J.W. The
¶ 29 Thereafter, the trial court entered an agreed order on Amy‘s petition to set child support. The parties agreed that Steve would pay Amy child support for J.W. in the amount of $300 per month in addition to an arrearage in child support of $4,500. The order noted that although the amount deviated from the guidelines, it was reasonable and appropriate under the unique circumstances of this case because Jason also pays child support to Amy for J.W.
¶ 30 On appeal, Steve argued that the trial court erred in holding that the burden of proof is on the noncustodial parent seeking visitation under the Parentage Act to establish that visitation is in the best interests of the minor child. He maintained that as a biological parent he enjoyed a presumption, entitling him to visitation under
¶ 31 However, in reaching its conclusion, the appellate court emphasized the factual circumstances of this case, highlighting that there was “no delay on Steve‘s part in attempting to establish a healthy, meaningful relationship with J.W.” Id. ¶ 41. The court stated, “[w]e are confident trial courts can sort out those cases such as Gagnon, where a biological father sought visitation after no contact for eight years, and [cases] where a presumed father eagerly sought continued visitation and contact with the son born during his marriage to the child‘s mother.” Id. ¶ 39. Thus, the court seemed to suggest that whether the presumption in
¶ 32 The appellate court held that Steve was entitled to reasonable visitation rights unless visitation would seriously endanger J.W.‘s physical, mental, moral, or emotional health. Id. ¶ 40. The court found that the evidence did not support a finding of serious endangerment. Accordingly, it reversed and remanded with directions for the trial court to create and implement a reasonable visitation plan. Id. ¶ 52.
¶ 33 We subsequently allowed Jason‘s petition for leave to appeal.
¶ 34 ¶ 35 I
¶ 36 The question presented by this appeal is a narrow one: What is the proper standard to be applied when a biological father seeks visitation privileges after a determination of parentage under
¶ 37 Familiar principles of statutory construction guide our analysis. Our primary objective is to give effect to the legislature‘s intent. In re C.C., 2011 IL 111795, ¶ 30. In determining that intent, we may properly consider the statutory language, the reason and necessity for the law, the evils to be remedied and the statute‘s ultimate purpose and objective. Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37. When construing the language of the statute, we must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Id. Our review is de novo. Mashal v. City of Chicago, 2012 IL 112341, ¶ 21.
¶ 38 The Parentage Act establishes a comprehensive scheme for determining paternity and for establishing custody, visitation, and child support obligations in connection with a judgment of paternity. Under the Act, once paternity is established,
“shall [be] determine[d] in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act [750 ILCS 5/101 et seq.] and any other applicable law of Illinois, to guide the court in a finding in the best interests of the child. In determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act, including Section 609.”
750 ILCS 45/14(a)(1) (West 2010) .
Thus,
¶ 39 We have previously held that under the express terms of the Parentage Act, a judgment of paternity does not automatically entitle a biological father to visitation. Rather, the “privilege” of visitation is subordinate to the best interests of the child. J.S.A. v. M.H., 224 Ill. 2d 182, 211 (2007) (“[T]he right of a biological father to establish paternity to a child
¶ 40 In J.S.A., this court reiterated that “the Parentage Act specifically provides in
¶ 41 As this court has long emphasized, the best interests of the child is the “guiding star” by which all matters affecting children must be decided. Nye v. Nye, 411 Ill. 408, 415 (1952). Nevertheless, we have not specifically been called upon to consider which provisions of the Marriage Act are “relevant” to guide the court in a finding in the best interests of the child in the context of a paternity action where visitation is at issue.
¶ 42 Initially, we observe that our appellate court has previously ruled inconsistently on this issue. Some cases have applied the best-interests provisions set forth in
¶ 43 Steve maintains that the appellate court correctly concluded that
“[a] parent not granted custody of the child is entitled to reasonable visitation rights
unless the court finds, after a hearing, that visitation would endanger seriously the child‘s physical, mental, moral or emotional health.”
750 ILCS 5/607(a) (West 2008) .
Thus, under
¶ 44 Although
¶ 45 When the General Assembly enacted the Marriage Act in 1977, it substantially adopted the Uniform Marriage and Divorce Act (Uniform Marriage Act). See
“Although the standard is necessarily somewhat vague, it was deliberately chosen to indicate its stringency when compared to the ‘best interest’ standard traditionally applied to this problem. The special standard was chosen to prevent the denial of visitation to the noncustodial parent on the basis of moral judgments about parental behavior which have no relevance to the parent‘s interest in or capacity to maintain a close and benign relationship to the child. The same onerous standard is applicable when the custodial parent tries to have the noncustodial parent‘s visitation privileges restricted or eliminated.”
Unif. Marriage and Divorce Act § 407, 9A U.L.A. 398-99, cmt. (1998) .
Thus, the onerous standard derives from the general principle that in matters of visitation, as in custody, the primary concern is the welfare of the child. In a postdissolution setting, the legislature has presumed it to be in the child‘s best interests to maintain a continued, meaningful relationship with both parents after the dissolution. See also
¶ 46 This general policy is also reflected in
¶ 47 As a result, the presumptive right to visitation in
¶ 48 In contrast, in actions under the Parentage Act, paternity is at issue and must first be proved. At the time visitation is sought, a relationship with the child may not have ever been forged, especially where paternity is established long after birth. See
¶ 49 As this case illustrates, there are many factors that may be relevant to whether visitation is in a child‘s best interests in the context of a paternity action. An alleged father seeking to determine his paternity and subsequent entitlement to visitation privileges may be confronted with an already existing meaningful relationship between a presumed father and a child, where the biological father has had no previous contact with the child. Alternatively, the alleged father may have been living with the child prior to a determination of paternity, or the marriage between the child‘s mother and a presumed father may have disintegrated so that there is not necessarily an “intact family.” Additionally, there may be scenarios where a biological father may be the only person in the child‘s life who can effectuate the strong public policy of providing for the physical, mental, emotional, and monetary support of the child.
¶ 50 Given the myriad relationships that may evolve outside the parameters of a dissolution proceeding, the General Assembly could not have predetermined with such broad strokes that
¶ 51 The provisions of
¶ 52 We recognize, as Steve points out, that
¶ 53 Accordingly, for the foregoing reasons, it was error for the appellate court to apply the “serious endangerment” standard of
¶ 54 II
¶ 55 We next consider whether the trial court erred in determining that it was not in J.W.‘s
¶ 56 Dr. Frey, the court-appointed expert, and Dr. Osgood, Steve‘s retained expert, disputed J.W.‘s cognitive understanding of her relationship to Steve and its implications for her best interests. They disagreed about the risks that introducing or reintroducing Steve into J.W.‘s life would have on her emotional well-being and stability and the risk to her bond with Jason, whom she has known as her father for her entire life.
¶ 57 The testimony of Dr. Frey and the GAL supports the trial court‘s conclusion that visitation was not in the best interests of J.W. at this stage in her life. Based upon various testing procedures, and the evaluation and interviews with J.W., it was their opinion that, despite the fact that Steve and J.W. had spent some time together, at this stage in her cognitive development, J.W. did not understand Steve to be her father and was unable to process a relationship with him. Dr. Frey believed that disrupting her life by introducing Steve as her father at this stage, given her current chaotic life circumstances, would potentially increase her risk of instability, disrupt her emotional well-being, and could be detrimental to her long-standing relationship with Jason and her mother.
¶ 58 Dr. Osgood disagreed with Dr. Frey‘s premise and believed that Steve and his family had developed a close and meaningful bond with J.W. and believed that it would be detrimental to now disrupt that relationship. Dr. Osgood was critical of Dr. Frey‘s failure to observe Steve with J.W. Nevertheless, the trial court found that Dr. Osgood‘s opinions were not persuasive where she did not interview J.W. to understand her perception of her relationship with Steve, did not perform any independent testing, and instead relied solely on her review of Dr. Frey‘s report and an interview with Steve. Dr. Osgood did not refute any of Dr. Frey‘s testing methods.
¶ 59 The court considered that Steve was genuinely interested in having a relationship with J.W., and considered the experiences Steve had with J.W. in late 2008 and early 2009, which were supported by his sister‘s testimony and other evidence. Nevertheless, after weighing the relevant best-interests factors, the court ultimately found any presumption that it was in J.W.‘s best interests to promote a parent-child relationship was rebutted by the evidence. In making its findings, the court relied upon the actions and behavior of J.W. as recounted by Dr. Frey and the GAL, and their concern for increased risk of harm to her at this stage in her concrete cognitive development. We cannot say that the trial court‘s ruling was clearly against the manifest weight of the evidence.
¶ 60 We note, and as Jason‘s counsel points out, the trial court‘s order and the statutory framework do not foreclose the possibility that in the future it may be in J.W.‘s best interests to have a meaningful relationship with her biological father and to reintroduce him into her life. Steve has shown a committed interest in developing a relationship with J.W. and has adhered to his parental responsibilities of support. The no-contact order in no way reflects
CONCLUSION
¶ 61 ¶ 62 For all of the foregoing reasons, we hold that the trial court correctly concluded that in a proceeding to entertain a petition for visitation privileges under
¶ 63 Appellate court judgment reversed.
¶ 64 Circuit court judgment affirmed.