James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.)

Decision Date22 May 2014
Docket NumberNo. 2–12–0266.,2–12–0266.
Citation381 Ill.Dec. 729,11 N.E.3d 360
PartiesIn re Parentage of SCARLETT Z.-D., a Minor (James R.D., Petitioner–Appellant, v. Maria Z., Respondent–Appellee).
CourtUnited States Appellate Court of Illinois


Keith E. Roberts, Jr., of Roberts P.C., of Wheaton, and Camilla B. Taylor, of Lamda Legal Defense & Education Fund, Inc., of Chicago, and Thomas W. Ude, Jr., of Lamda Legal Defense & Education Fund, Inc., of New York, New York, for appellant.

David W. Schopp, of Law Office of David W. Schopp, of Aurora, for appellee.

John Knight, of Roger Baldwin Foundation of ACLU, Inc., and Ari Z. Cohn and Frank M. Dickerson III, both of Mayer Brown LLP, both of Chicago, for amicus curiae American Civil Liberties Union.

Hugh S. Balsam and Andy J. Miller, both of Locke Lord LLP, of Chicago, for other amici curiae.

Joseph M. Beck, of Beck & Houlihan, P.C., of Wheaton, guardian ad litem.


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

¶ 1 Petitioner, James R.D. (Jim), sought a declaration of parentage, custody, visitation, and child support regarding Scarlett Z.-D., the adopted daughter of his former fiancée, respondent, Maria Z. He appeals from the trial court's dismissal under section 2–615 of the Code of Civil Procedure (Code) (735 ILCS 5/2–615 (West 2012)) of his claims brought under common-law contract theories and from the court's denial, following trial, of his claims brought under the equitable parent doctrine. Initially, we affirmed. In re Parentage of Scarlett Z.–D., 2012 IL App (2d) 120266, 363 Ill.Dec. 729, 975 N.E.2d 755. Jim filed a petition for leave to appeal with the Illinois Supreme Court. The supreme court denied his petition but also entered the following supervisory order:

“In the exercise of this Court's supervisory authority, the Appellate Court, Second District, is directed to vacate its order in James R.D. v. Maria Z., case No. 2–12–0266 [ (In re Parentage of Scarlett Z.-D., 2012 IL App (2d) 120266, 363 Ill.Dec. 729, 975 N.E.2d 755) ]. The Appellate Court is instructed to reconsider its decision in light of this Court's opinion in DeHart v. DeHart, [2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85], to determine if a different result is warranted.” In re Parentage of Scarlett Z.–D., 372 Ill.Dec. 464, 992 N.E.2d 3 (Ill.2013).

In accordance with our supreme court's directive, we vacate our previous order in this case. We conclude that a different result is not warranted under the law as it existed at the time of our previous order. However, to the extent of any change in the law, our reconsideration is hindered by the lack of factual findings by the trial court, which did not have the benefit of DeHart when it rendered its ruling. For the following reasons, we affirm the trial court's dismissal of counts III through VI, vacate its order denying counts I and II, and remand with directions for further proceedings.


¶ 3 Jim and 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 3 1/2-year-old orphan girl. Maria and Jim decided that Maria would adopt Scarlett, and Maria commenced the process. Under Slovakian law, Jim was not permitted to adopt Scarlett, because he was neither a Slovakian national nor married to Maria. During the year-long adoption process, Maria lived in Slovakia. Jim remained in the United States, 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 legally 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. On May 11, 2009, Jim filed his second amended petition, 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 2012)) or section 7 of the Illinois Parentage Act of 1984 (Parentage Act of 1984 1) ( 750 ILCS 45/7 (West 2012)), providing for actions to determine the existence of a father-child relationship. Jim filed a response, arguing that a section 2–615 motion was not the proper vehicle to raise the issue of standing and that, therefore, Maria had 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 2012)) 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 Parentage of Scarlett Z–D., No. 2–09–1280, 395 Ill.App.3d 1127, 369 Ill.Dec. 498, 986 N.E.2d 811 (2009) (unpublished order under Supreme Court Rule 23).

¶ 9 Thereafter, the case proceeded on counts I and II of Jim's petition, in which Jim requested a declaration of parentage, custody, and visitation (count I) and child support (count II). Jim asserted that he was Scarlett's parent under the theories of de facto parent, equitable parent, and psychological parent or that he stood in loco parentis to Scarlett. Maria filed her response 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. Robert Shapiro (the custody evaluator), Dr. Margot 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, 358 Ill.Dec. 521, 965 N.E.2d 592, appeal denied & judgment vacated by Mancine v....

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