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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.

John\Sharp Thinking\#74.doc
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