Parentage of J.W. v. Wills

• Decision Date: 23 May 2013
• Docket Number: Docket No. 114817.
• Citation: 990 N.E.2d 698,2013 IL 114817,371 Ill.Dec. 510
• Parties: In re PARENTAGE OF J.W., a Minor (Steve Taylor, Appellee, v. Amy Wills–Merrill (Jason Wills, Appellant)).
• Court: Illinois Supreme Court

2013 IL 114817

990 N.E.2d 698

371 Ill.Dec. 510

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

Docket No. 114817.

Supreme Court of Illinois.

May 23, 2013.

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.

OPINION

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

[371 Ill.Dec. 511]¶ 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. ²750 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...