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The nuclear family, with both a biological mother and father, has long been considered the ideal family setting to raise a child. While this idea may have its flaws, many laws reflect this ideal. Illinois is no exception. Section 607(a) of Illinois’s Marriage and Dissolution of Marriage Act supports the notion that non-custodial parents are entitled to reasonable visitation rights with minor children of the marriage. The Marriage and Dissolution of Marriage Act also recognizes that visitation rights should be determined based on the best interests of the child. These laws both make sense, but what happens when one conflicts with the other?

In Illinois, the appellate courts have struggled with which standard to apply when they have a situation with a biological parent who wants to see his child, but the visitation may not be in the child’s best interest. Some courts have determined that visitation should be presumed allowed unless the other parent can show a serious endangerment to the child’s physical, mental, moral, or emotional health. Other courts consider the best interests of the child as a whole, taking into account all the relevant factors of the child’s life to make this determination. The presumption for the paternal parent occasionally outweighs the best interests of the child, which may produce strange results.

On May 23, 2013, the Supreme Court for the State of Illinois resolved the dispute by evaluating a unique case that could have haven been taken out of a soap opera. In this case, a woman, Amy, was in a relationship with Jason. Jason and Amy were together for several years, had a child, and later married. They were later divorced. What Jason and Amy did not know, was that Jason was not the real father of their child. Amy had a one-time sexual encounter with Steve during her relationship with Jason. However, Jason and Amy raised the child as if she were their own. Shortly after the divorce, Amy and her daughter moved away, but Jason had some visitation rights. Amy then remarried a man named Joe, who has three children of his own. Joe and Amy also have their own child together.

Years later, Steve was searching for old friends on a social networking site and found Amy. He noticed the interesting resemblance between Amy’s daughter and himself. He contacted Amy and explained his observation. Steve and Amy submitted their daughter to biological testing to confirm that Steve was in fact the father. Amy left Joe for a short period to go stay with Steve. Jason discovered this and had the divorce decree amended so as to prohibit Steve from having any contact with the child that Jason helped raise for the past seven years.

Steve was heartbroken. He had no children of his own and welcomed both Amy and his daughter into his life. He sought the court’s help in obtaining visitation rights to his daughter. In the meantime, while things were processing through the court, Amy moved away from Steve in order to comply with the no-contact order, taking her daughter with her. She then reunited with Joe and his children.

Steve brought his case to the trial court, which determined that the relevant standard for visitation rights was to determine the best interests of the child, regardless of the biological connection between the parent and the child. After expert opinions of several doctors and after several studies involving Jason, Steve, Amy, and the child, the trial court determined that granting Steve visitation rights would not be in the child’s best interest. The persistent Steve appealed his case. The Court of Appeals applied a different standard – they determined that the biological parent should have a presumption of visitation unless it would cause endangerment to the child. The Court of Appeals decided that Steve was not an endangerment, so they granted him visitation rights. However, Jason, who did not want the child to see Steve, appealed.

The Supreme Court of Illinois sided with Jason and agreed with the lower court. They explained that the interests of the child should always be at the forefront of the family’s and the court’s decision-making process. However, in that analysis, the Court continued, they should consider who the biological parent to the child is. Given that his child had two father figures in her life already (Joe and Jason), the experts concluded that it would be unwise to introduce a third father figure given her young age. Someday, however, the child may be ready to fully understand the role of each of these men in her life. Steve is hopeful that the no contact order will be lifted in the future so that he can gain visitation rights.

Today, the child is eleven. Steve can have her evaluated by experts to determine when she will be ready to handle visitations from Steve. Although the story did not work out well for Steve (who did not get visitation, but now has to pay a portion of child support), it did work out well for the child. It is important that the focus in these types of cases is always on the best interests of the child, who may not know what is best for her.

McCarthy, Callas & Feeney regularly handle family law cases. We are happy to help answer your legal questions regarding custody, divorce, or any other family law issue. Call us today at 309-788-2800.


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