IRPO J.W., 2013 IL 114817, in which the Illinois Supreme Court addressed visitation rights versus privileged in parentage cases.
By Gunnar J. Gitlin and Stephanie A. Kasten, family lawyers
The question was whether, under the Illinois Parentage Act of 1984 (Illinois 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 §602 of the Illinois Marriage and Dissolution of Marriage Act (Illinois Marriage Act).
In Illinois parentage cases, the custody and visitation standards within the Illinois Marriage Act are incorporated by reference within the law regarding paternity. The Illinois Parentage Act states,
Sec. 14. Judgment.
(a) (1) The judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support and may contain provisions concerning the custody and guardianship of the child, visitation privileges with the child, . . . which the court shall determine in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act 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 . . .
So, the question in the case was a narrow one: what is the proper standard to be applied in determining visitation after a finding of parentage, in terms of whether the Illinois Parentage Act had incorporated the visitation provisions of §607(a) providing a presumption in favor of the biological parent for visitation and not requiring that parent to prove visitation was in the child’s best interests.
§607(a) of the Illinois Marriage Act provides:
[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)
But §602(a) of the Illinois Marriage provides, “The court shall determine custody in accordance with the best interest of the child.” 750 ILCS 5/602(a) (West 2008).
The Court stated:
As a result, the presumptive right to visitation in section 607(a) of the Marriage Act, drafted over 30 years ago, is in keeping with the traditional model of a family paradigm, where each parent has presumably exercised custody over the child and one parent will now be granted custody and the other reasonable visitation. Such a presumption reflects a legislative recognition of the need to protect the preexisting parent-child bond that presumably developed prior to the divorce or separation of two parents. Thus, to overcome the presumption that visitation is in the best interests of the child in custody proceedings filed by a parent under the Marriage Act, the General Assembly sought a higher, more stringent burden on the custodial parent than merely the traditional best-interests factors.
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 750 ILCS 45/8(a)(1) (West 2010) (recognizing that the statute of limitations for raising paternity is two years after the minor reaches the age of majority). Additionally, the paradigm of preserving or continuing the parent-child relationship of a traditional intact family unit does not accurately reflect many family situations. . . . Thus, in parentage actions, issues of visitation may arise under situations where the court may be asked to balance several competing interests related to the child.
The Court focused on the traditional model of “family” that was in place at the time the two Acts were enacted, even though the IPA will potentially be rewritten in the near future. While I would disagree somewhat from an equal protection point of view, the Supreme Court has spoken.
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Gunnar J. Gitlin and Stephanie A. Kasten are family lawyers with The Gitlin Law Firm, P.C., a firm dedicated to providing several Illinois counties with quality legal service.
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