No. 3-00-0398
February 20, 2001
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APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2001
| DANIEL D. DONATH, | ) | Appeal from the Circuit Court | ||||
| ) | for the 10th Judicial Circuit, | |||||
| Plaintiff-Appellee, | ) | Peoria County, Illinois | ||||
| ) | ||||||
| ) | No. 96 F 502 | |||||
| ) | ||||||
| ) | ||||||
| ) | ||||||
| ) | ||||||
| DEANNA BUCKLEY, | ) | Honorable Erik I. Blanc | ||||
| by marriage, Cady, | ) | Judge, Presiding | ||||
| ) | ||||||
| Defendant-Appellant. | ) | |||||
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JUSTICE McDADE delivered the Opinion of the Court
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Defendant, Deanna Buckley (k/n/a Deanna Cady), appeals from the April 17, 2000, orderin which the trial court denied her Petition to Declare the Non-Existence of the Parent/ChildRelationship on the basis that the Petition was barred by the statute of limitations, and requiredthe parties to either reach an agreement or set a hearing on the issue of an appropriate visitationschedule. The Court finds that the trial court applied the appropriate statute of limitations. Thedecision is affirmed.
FACTS
On October 18, 1996, the plaintiff, Daniel Donath (Daniel), filed a Petition to EstablishParent and Child Relationship by Consent of the Parents. This Petition was signed by theDefendant, Deanna Buckley . On November 27, 1996, the trial court entered an order grantingthe Petition and declaring that a parent-child relationship existed between 14-month old KatelinDonath (Katelin) and Daniel. This order gave permanent care, custody and control of Katelin toDeanna, but allowed Daniel visitation rights.
On February 1, 1999, Deanna filed a Petition to Declare the Non-Existence of the Parent/Child Relationship (Petition), stating that Daniel was not Katelin's biological father. On March2, 1999, Daniel petitioned the court for enforcement of his previously granted visitation, andanswered Deanna's Petition, averring his belief that he was Katelin's biological father. Adeoxyribonucleic acid (DNA) test was ordered on April 13, 1999, and completed on May 7,1999. The test found the probability of biological paternity to be zero percent (0%).
On September 22, 1999, Deanna petitioned the court to vacate its earlier order grantingvisitation to Daniel. The petition was denied on December 9, 1999. In the meantime, Daniel hadfiled a petition for enforcement of the visitation on December 6, 1999. In response to this petition, Deanna filed a motion to dismiss, stating that Daniel had always known he was notKatelin's biological father. In response to this motion, Daniel admitted, apparently because of theDNA results, that he did not have any statutory right to visitation, but pled affirmatively thatIllinois courts have allowed visitation by a non-parent over a parent's objection, where it was inthe best interest of the child. He contended that he had built a relationship with Katelin, who wasnow three years old, and that maintenance of that relationship was in her best interest.
Hearings were held on March 3, and April 14, 2000, on Deanna's Petition. Deannatestified that she and Daniel knew from the time she was pregnant that he was not the biologicalfather of Katelin, and that she had done nothing to deceive him. However, Daniel testified thathe always believed he was Katelin's biological father and had no reason to question his beliefuntil he read court documents challenging that status in February 1999. It was also alleged thatDaniel had improperly touched Katelin and had physically abused Deanna. Daniel denied anyimproper touching of Katelin, and testified that DCFS had ruled the claim was "unfounded." Daniel did not deny physically abusing Deanna.
Daniel also testified that he had resided with Deanna for several periods of time, and thathe visited Katelin every other weekend and every other holiday for the first year of her life whenhe was not residing with Deanna. He also testified that he participated in activities with Katelin,celebrated occasions such as her first birthday, her first Halloween, her first Christmas, and herfirst Easter. Daniel called his sister and brother-in-law, with whom he was residing, to testify onhis behalf. They both testified that Daniel was a good father who actively participated in the careof Katelin, and that Katelin referred to him as "Daddy."
On April 17, 2000, the trial court entered an order denying Deanna's Petition, stating thatthe challenge was barred by the statute of limitations. The order required the parties to set ahearing on the issue of visitation if they could not agree on an appropriate schedule. The courtdirected that Daniel's visitation with Katelin should initially be supervised.
The issues raised by Deanna on appeal are: 1) whether the trial court properly denied herPetition as barred by the applicable statute of limitations, and 2) whether the court complied withstatutory provisions and case law in allowing Daniel visitation with Katelin.
ANALYSIS
The trial court's interpretation of a statute is reviewed de novo. Russell v. Department ofNatural Resources, 183 Ill. App. 3d 434, 701 N.E.2d 1056 (1998).
The Appropriate Statute of Limitations
The Illinois Parentage Act (750 ILCS 45/7), governs the determination of father and childrelationships, and of who may bring actions regarding that relationship. Section 8 of the same actaddresses the appropriate statute of limitations for any given action under this Act.
750 ILCS 45/7(b) provides:
An action to declare the non-existence of the parent and childrelationship may be brought by the child, the natural mother, or aman presumed to be the father under subdivision (a)(1) or (a)(2) ofSection 5 of this Act [750 ILCS 45/5]. Actions brought by thechild, the natural mother or a presumed father shall be brought byverified complaint . . ..
750 ILCS 45/7(b-5) provides:
An action to declare the non-existence of the parent and childrelationship may be brought subsequent to the adjudication ofpaternity in any judgment by the man adjudicated to be the fatherpursuant to the presumptions in Section 5 of this Act, if, as a resultof DNA tests, it is discovered that the man adjudicated to be thefather is not the natural father of the child. Actions brought by theadjudicated father shall be brought by verified complaint. If. as aresult of the deoxyribonucleic acid (DNA) tests, the plaintiff isdetermined not to be the father of the child, the adjudication ofpaternity and any orders regarding custody, visitation, and futurepayments of support may be vacated . . ..
750 ILCS 45/8(3) provides:
An action to declare the non-existence of the parent and childrelationship brought under subsection (b) of Section 7 of this Act[750 ILCS 45/7] shall be barred if brought later than two yearsafter the petitioner obtains knowledge of relevant facts . . ..
750 ILCS 45/8(4) provides:
An action to declare the non-existence of the parent and childrelationship brought under Section (b-5) of Section 7 of this Act[750 ILCS 45/7] shall be barred if brought more than six monthsafter the effective date of the Amendatory Act of 1998, or morethan two years after the petitioner obtains actual knowledge of therelevant facts, whichever is later.
Section 7(b) of the Illinois Parentage Act governs the circumstances under which anatural mother may challenge paternity. The statute of limitations for her challenge is found in750 ILCS 45/8(3), providing that the action must be brought no later than two years after thepetitioner obtains knowledge of the relevant facts. In this case Deanna testified that she alwaysknew that Daniel was not Katelin's father. Yet, Katelin was over three years old by the timeDeanna filed
her Petition on February 1, 1999. Thus, Deanna did not comply with Section 8(3), so any actionby her pursuant to 7(b) was barred by the statute of limitations.
Deanna asserts, however, that her Petition was brought pursuant to 750 ILCS 45/7(b-5)and that the appropriate statute of limitations is 750 ILCS 45/8(4). Both parties agree that herPetition was filed within six months of the Amendatory Act of 1998.
The court notes initially that Deanna filed her Petition on February 1, 1999. Under theplain language of the statute, no person would have standing to file an action under Section b-5until after the DNA test had been completed. In re Marriage of Lubbs and Dukes, 313 Ill. App.3d 968, 730 N.E.2d 1139 (2000). In this case, the DNA test was not completed until May 7,1999. Thus, Deanna's Petition, even if otherwise proper, was premature.
Of far greater import, however, according to the plain language of 750 ILCS 45/7(b-5),Deanna lacks standing to bring an action under that section. She is clearly not "the manadjudicated to be the father . . .." Deanna attacks the constitutionality of this restriction, claimingthat to deny her cause of action on this basis would be discrimination on the basis of gender and adenial of due process guaranteed her by the Illinois and United States Constitutions. Thisargument has no merit.
Section 45/7(b-5) is designed to provide a remedy for a person who has already beendetermined by the court to be the father of the child based on certain presumptions in the IllinoisParentage Act. When those presumptions are rebutted by DNA findings, the "father" is given aspecific basis and time frame to seek reversal of the earlier judicial determination of paternity.
A mother who believes the man to be her child's father and succeeds in having him soadjudicated has the same right as the father to challenge paternity in the face of contrary DNAfindings. Her claim would, however, still be brought pursuant to 45/7 (b). The communicationof the test results would be the first time the mother "obtains knowledge of relevant facts"showing the man is not, in fact, the father. She then has two years to bring an action to declarethe non-existence of a parent-child relationship.
That option fails for Deanna only because she testified that she has known since beforeKatelin's birth that Daniel was not the father. She is statutorily barred from challengingpaternity, not because of her gender but because of that avowed knowledge. Moreover, unlessDaniel seeks to deny the relationship, Deanna is legally bound by the judicial declaration ofpaternity that she and Daniel secured by agreement and consent.
Visitation for the Defendant
Deanna argues that the court granted Daniel visitation rights contrary to the terms andprovisions of the Illinois Parentage Act, Uniform Child Custody Jurisdiction Act, and the IllinoisMarriage and Dissolution of Marriage Act. However, based on the above ruling, Deanna isforeclosed from raising this argument.
Since the statute of limitations bars Deanna's Petition and Daniel has no desire to severhis ties with Katelin, the November 1996 court order is controlling. In October 1996, Danielfiled and Deanna signed a Petition to Establish Parent and Child Relationship by Consent of theParents. On November 27, 1996, the court entered an order finding, on the basis of parentalconsent, that Daniel was the father of Katelin. A visitation schedule was entered on April 25,1997, and modified in an agreed order, signed by counsel for Daniel and Deanna, on July 14,1998. Thus, Daniel did have legal standing to enforce visitation, and the court did not err inrecognizing his rights and granting him visitation pursuant to the prior order.
Deanna raised the allegation of sexual abuse of the minor child by the plaintiff as anadditional reason to deny Daniel visitation. However, that allegation was investigated by DCFSand determined to be unfounded. Therefore, that cannot be used as a basis for the court tomodify the visitation arrangement.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Peoria County denying thedefendant's Petition to Declare the Non-Existence of the Parent/Child Relationship on the basisthat the Petition was barred by the statute of limitations, and requiring the development of anappropriate visitation schedule is affirmed.
Affirmed.
HOMER, P.J., and BRESLIN, J., concur.