In re Parentage of John M.

• Decision Date: 23 September 2004
• Docket Number: No. 97327., No. 97227
• Citation: 817 N.E.2d 500,288 Ill.Dec. 142,212 Ill.2d 253
• Parties: In re The PARENTAGE OF JOHN M., a Minor (Javier Valdivia v. Maria Matias Izaguirre et al. (Maria Matias Izaguirre, Appellant; Dennis Dean Malkowski, Appellee; Lisa Madigan, Attorney General of the State of Illinois, Appellant)).
• Court: Illinois Supreme Court

817 N.E.2d 500

212 Ill.2d 253

288 Ill.Dec. 142

In re The PARENTAGE OF JOHN M., a Minor (Javier Valdivia v. Maria Matias Izaguirre et al. (Maria Matias Izaguirre, Appellant; Dennis Dean Malkowski, Appellee; Lisa Madigan, Attorney General of the State of Illinois, Appellant)).

Nos. 97227, 97327.

Supreme Court of Illinois.

September 23, 2004.

Bernard S. Shapiro, Kathryn McGowan Bettcher, Batavia, for appellant Maria Matias Izaguirre.

Gary Feinerman, Solicitor General, Diane M. Potts, Assistant Attorney General, Chicago, for appellant Lisa Madigan, Attorney General, Springfield.

Steven N. Peskind, Geneva, appellee.

Chief Justice McMORROW delivered the opinion of the court:

Intervenor, Lisa Madigan, in her capacity as Attorney General of the State of Illinois, and defendant Maria Izaguirre¹ (Maria) appeal directly to this court from an order of the Kane County circuit court holding the Illinois Parentage Act of 1984 (the Act) (750 ILCS 45/1 et seq. (West 2000)) unconstitutional and dismissing with prejudice the "Petition to Determine a Father-Child Relationship" brought by plaintiff, Javier Valdivia (Javier), pursuant to section 7 of the Act (750 ILCS 45/7 (West 2000)). The circuit court entered its ruling upon a motion brought by defendant Dennis Dean Malkowski (Dennis). We reverse the circuit court's judgment and remand for further proceedings.

BACKGROUND

On May 22, 2002, Javier filed a petition in the circuit court of Kane County, pursuant to section 7 of the Illinois Parentage Act, asking the court to determine the existence of a father-child relationship between himself and John M. (Baby John), a child born to Maria on August 31, 2001. Javier alleged in the petition that he is Baby John's biological father, that he has visited Baby John since Baby John's birth, and that he is willing and able to provide financial support for Baby John. Javier asked the court to issue an order establishing his paternity. Javier also asked the court to determine his child support obligation and to set a reasonable visitation schedule.

Dennis was married to Maria at the time of Baby John's birth and, thus, is Baby John's presumed father pursuant to section 5(a)(1) of the Act (750 ILCS 45/5(a)(1) (West 2002)). In response to Javier's petition, Dennis asked the court to stay all proceedings, including any genetic testing, pending the appointment of a guardian ad litem for Baby John. Dennis then moved for the involuntary dismissal of Javier's petition. In support of the dismissal motion, Dennis presented three arguments. First, Dennis argued that the Illinois Parentage Act, "as applied to this case," is unconstitutional because it allows a "stranger" to attack the legitimacy of a child. Citing to the United States Supreme Court case Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), Dennis contended that Illinois law, "as utilized by the plaintiff[,] is an attempt by the plaintiff to intercede into the sacred family unit of a husband, wife and child born during the marriage." Dennis further alleged:

"[T]o the extent that Illinois law creates the possibility that a child can have two fathers, the child is denied due process of law and the equal protection of law guaranteed by the Constitutions of the United States of America and the State of Illinois."

In Dennis' second argument, under the heading "Best Interests," Dennis contended:

"Prior to granting any relief prayed for by the plaintiff, Illinois should require that there be a best interests hearing to determine if it is in the best interest that there be any genetic parentage testing at all and whatsoever. The superior rights of marriage, and a child born to a married couple, should be considered prior to letting a stranger conduct a legal and scientific incursion into the lives of a mother, father, and infant child, which will permanently and adversely effect [sic] each of them." (Emphasis added.)

Dennis then concluded:

"Basic and fundamental fairness, constitutional guarantees of equal protection of law and due process of law demand that this court hold a hearing to determine the best interest of the minor child as to whether or not a parentage issue should or can be raised by any person other than the natural mother's husband before allowing any further proceedings herein whatsoever."

In his third argument, Dennis challenged Javier's standing to bring the petition to establish a parent-child relationship. Dennis argued that Javier did not have standing because Dennis and Maria were married at the time that Baby John was born and there was evidence (apparently Dennis' attached affidavit) that Dennis was neither sterile nor impotent, and that Dennis and Maria engaged in "conjugal contact" around the time that Baby John was conceived. No authority was cited for this "lack of standing" argument.

Dennis submitted an affidavit in support of his dismissal motion. In the affidavit² Dennis asserted that he and Maria were married on December 19, 1997, that they have not divorced, and that no suit to dissolve the marriage had been filed. In the course of this marriage, Maria gave birth to a son, Baby John, on August 31, 2001. Dennis is named as Baby John's father on Baby John's birth certificate. Dennis further asserted that he is neither impotent nor sterile and that he and Maria engaged in sexual intercourse around the time of Baby John's conception.

Dennis stated that, shortly after Baby John's birth, in October or November of 2001³, Javier took Baby John to live with him. Maria and her nine-year-old daughter, Betzaida Izaguirre, also began living with Javier at that time. About four months later, however, Maria and the children returned to Dennis' residence. According to Dennis, when Maria returned, she said that she began living with Javier to protect Baby John; that Javier held her against her will; and that she and the children had been required to live in a basement, where it was damp and cold. Dennis further stated that Maria and the children left the marital residence again on June 17, 2002 (the date of the first court hearing on Javier's petition). When Dennis went to court, he discovered that Maria and the children were with Javier. Maria refused to speak with Dennis. Moreover, when Dennis returned home after the court hearing, he found that Maria's and the children's belongings had been removed from his premises. According to the affidavit, Maria and the children have been living with Javier since that time.

Maria, represented by Prairie State Legal Services, Inc., entered an appearance on June 27, 2003. The record contains no pleadings by Maria in response to Javier's petition.⁴

In December 2002, a guardian ad litem was appointed for Baby John. Thereafter, on April 8, 2003, the court held a hearing on Dennis' motion to dismiss. The court heard no witness testimony and received no documentary evidence. Javier, Maria, Dennis and Baby John were each represented by counsel, who presented arguments to the circuit court. After hearing these arguments, the court ruled as follows:

"Okay. It seems to me that several factors of this statute are problematic.

First of all, I think there were presumptions or an objective or a consideration in society that marriage in a family has some sanctity and that that is a basis for our statutes, our government and much else of what we do in government and society.

Secondly, although it is present in this case, the absence of any time limit herein which is this time limit could come into place [sic] I see as a problem and I agree with Mr. Peskind [defense counsel] and I agree with Ms. Kostelney [guardian ad litem] and all of the cases that say that we have to consider the best interest of the child in determining the custody, matter of visitation and any adoption situations of parentage or termination of parentage.

And so I am going to find the statute unconstitutional. It is I think, too, violates some of the basic tenants [sic] of our society. I think the presumption of the paternity is of the husband in this case. Certainly, there is no divorce, no legal separation or no court orders in effect ending that marital relationship.

And I don't think that we can, I don't think the statute is clear enough to rely on it."

The court's written order contains two findings:

"1. That 750 ILCS 45/1 et seq. [the Parentage Act] and specifically 750 ILCS 45/7 [section 7] is unconstitutional and violates the constitutional rights of due process and equal protection of law guaranteed and applied to Dennis Malkowski and Baby John as provided for in the Constitution of the United States of America, Fourteenth Amendment and the Illinois Constitution.

2. The Court also finds that the statute is facially unconstitutional in that it fails to allow a court to determine best interests of children in considering petitions brought under 750 ILCS 45/7."

The court dismissed Javier's petition with prejudice.

Having declared the Parentage Act unconstitutional, the court sent notice to the Illinois Attorney General pursuant to Supreme Court Rule 19. On May 30, 2003, Lisa Madigan, as Attorney General of the State of Illinois, filed a petition to intervene, which the court granted, and on September 2, 2003, the Attorney General submitted a memorandum of law in support of the constitutionality of the Act.

Javier filed a motion for reconsideration in which he attacked the circuit court's finding of unconstitutionality. In this motion, Javier argued that the circuit court's reasoning in finding the Parentage Act unconstitutional, i.e., the sanctity of marriage and the societal importance of preserving that unity, failed to take into consideration the facts of this case. Javier pointed out that, although Maria and Dennis were legally married when Baby John was born, they had not been living together as man and wife; that Javier and Maria had an ongoing relationship that began in January 2000; and that Maria and Baby John have...