Page 37 - Sharp-Hundley 2012

Sharp Thinking

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, Rreinhardt@lotsharp.com, 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. Reinhardt

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

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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