In In Re Parentage of J.W., 2013 IL 114817, Illinois Supreme Court decided that the visitation was more of a right than a privilege.
Gunnar J. Gitlin, Family Lawyer
In Illinois, there had been an open question of whether visitation in paternity (parentage cases) was a right or a privilege. In In Re Parentage of J.W., 2013 IL 114817, Illinois Supreme Court, addressed this issue: if the standards that apply to divorce law under the Illinois Marriage and Dissolution of Marriage Act applied, then visitation was more of a right than a privilege. If the divorce law applied, then there was a presumption in favor of the biological parent for visitation that did not require that parent to demonstrate that visitation was in the child’s best interests.
In Re Parentage of J.W.: entitling the non-residential parent to reasonable visitation
The father urged that the appellate court correctly ruled that the Illinois Parentage Act incorporates the visitation provisions of section divorce law and so there was a rebuttable presumption entitling the non-residential parent to reasonable visitation – unless the serious endangerment standard were proven by the custodial parent.
The divorce law in Illinois provides that: “[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).
In contrast, Illinois parentage law provides that: “the judgment may contain provisions concerning *** visitation privileges with the child.” (Emphasis supplied by appellate court.).
The Illinois Supreme 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.
Establishing Paternity Under the Parentage Act
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. *** 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.
Accordingly, in Illinois parentage cases, visitation is a privilege, is not subject to presumptive rights (compared to divorce cases where visitation is a right), and is not automatic. The court should make findings regarding visitation being either in the best interests of the child or not in the best interests of the child. A proposed comprehensive re-write to the Illinois paternity law has been proposed and is in the legislative hopper.
Gunnar J. Gitlin practices family law in Illinois and is the founder of the Gitlin Law Firm.
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