No. 74  Perspectives on Developments in the Law from The Sharp Law Firm, P.C.    October 2012

Appellate Court Moves Toward More Uniform Approach On Burden of Proof on Non-Custodial Parent Visitation

By Rebecca L. Reinhardt,, 618-242-0246

            The Fourth District of the Illinois Appellate Court has reversed its prior holding regarding the burden of proof for non-custodial parents’ visitation rights and moved toward a more uniform interpretation across the state on that issue.

            The Fourth District determined that it had been applying an erroneous standard for determining visitation rights of non-custodial parents.  In Taylor v. Wills-Merrill, 2012 IL App (4th) 120212, it reversed itself, putting the burden on the custodial parent who is seeking to limit visitation and holding that there is a presumptive right in the biological parent to reasonable visitation.


            Unusual Fact Situation.  In Taylor, after seeing a social networking profile of a woman with whom he had had one sexual encounter, which profile contained a photograph of a child who resembled him, Taylor contacted the woman.  The woman indicated that the child indeed could be his.  DNA testing determined that Taylor was indeed the biological father.  However, the mother had listed another man (her husband) as the father on the birth certificate and her husband had been fulfilling the role of the father to the child.  The marriage of the mother and her husband was dissolving and custody of the child was disputed.  Taylor petitioned the court for visitation, and the husband sought to prevent biological father from having any contact with the minor child.     

            The Circuit Court held that under the Fourth District’s decision in Ill. Dep’t of Public Aid ex rel. Gagnon-Dix v. Gagnon, 288 Ill.App.3d 424 (1997), the biological father had no presumptive right to visitation and that he had failed to prove by a preponderance of the evidence that visits would be in the child’s best interest.  Taylor appealed and the Appellate Court reversed, stating “there is a presumption that [biological father] is entitled to reasonable visitation rights unless visitation would endanger seriously [the child’s] physical, mental, moral, or emotional health.  The trial court erred when it placed the evidentiary burden on the biological father.”  The court went on to state that the circuit court “conscientiously evaluated the evidence but did so using a standard we no longer believe applies.  [The biological father] bore no burden of proof”.

            Interaction of Parentage, Marriage Acts at Issue.  Previously, in Gagnon, the Fourth District, grappling with the difficult situation of a biological father who had nothing to do with his biological child for 8 years, held that there is no presumption of reasonable visitation for the biological father under the Parentage Act (750 ILCS 45).  Then as now, § 14(a)(1) of the Parentage Act incorporated “relevant factors” of the Marriage and Dissolution of Marriage Act (750 ILCS 5) (“Marriage Act”) for visitation privileges involving non-custodial parents.  Section 607(a) of the Marriage Act states that a noncustodial parent is “entitled” to “reasonable” visitation unless visitation would seriously endanger the child’s “physical, mental, moral or emotional health.”  However, the Gagnon court construed the Parentage Act’s reference to “relevant standards” language to mean that not every rule applicable in a dissolution case applies in a parentage case, and ruled that the presumption embodied in § 607(a) was not incorporated.

            Rejection in Other Districts.  Gagnon was often distinguished or completely rejected in other districts.  For example, in In re Melton, 314 Ill.App.3d 476 (2002), the First District stated, “Like divorce under the Marriage Act, proceedings under the Parentage Act are ‘entirely statutory in origin . . . the court’s authority is limited thereby.”  Moreover, the First District said the Gagnon court cited no statutory authority for the shift in the burden of proof.  “We cannot accept the court’s strained construction of the phrase ‘relevant standards’,” it said.  “The Marriage Act sets out the factors for determining visitation privileges in section 607(a), and those factors guide visitation determinations under the Parentage Act because they are the ‘relevant standards’ for determining visitation privileges.”

            In the Third District, Wenzelman v. Bennett, 322 Ill.App.3d 262 (2001), stated that “absent exigent circumstances all biological parents enjoy a presumption that they are entitled to visitation with their children, whether visitation is requested under the Illinois Marriage and Dissolution of Marriage Act or the Illinois Parentage Act.”  The Third District went on to clarify, “we interpret Gagnon to mean that any parent, in wedlock or out of wedlock, that seeks to establish extensive visitation after eight years of no contact with a child has the burden to show that visitation is in the child’s best interests.  Absent any indication that no prior relationship existed between parent and child, we determine that a presumption exists in favor of biological parents for visitation.”

            And the Fifth District, in Jines v. Jurich, 335 Ill.App.3d 1156 (2002), held that the burden was on the custodial parent seeking to restrict the visitation of the non-custodial parent.  “We disagree with Gagnon,” it said.  “The Parentage Act requires the court to apply the ‘relevant standards’ of the Marriage Act to determine custody.  The clear import of referring to the standards that are relevant is to direct the court in a parentage case to the sections of the Marriage Act that address the issue raised by the case. If the issue in a case is visitation, then the court is to apply the portions of the Marriage Act that establish standards for visitation, and likewise for custody or joint custody.”

            Better Result Finally Reached.  The recent decision in Taylor creates a more uniform interpretation of the Parentage Act across the state.  It prevents custodial parents in Parentage Act cases from asserting that non-custodial parents are treated differently than those in dissolution cases where the parties had been previously married.  It also conforms to the statutory interpretation principles courts are bound to follow.  Regardless of how bad the court felt the father in Gagnon was for not seeing his child for 8 years, the legislature had drafted the statute very clearly.  Any burden of proof placed on him was clearly erroneous under the Parentage Act.

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