dissenting:
I
As explained below, I believe that J.S.A. was wrongly decided by the supreme court. That being said, we in the appellate court are still bound by it. Inexplicably, the majority reverses the trial court on the basis that the trial court did exactly what the supreme court told it to do. The supreme court made it clear that, “As stated, the Parentage Act specifically provides in section 14(a)(1) that decisions regarding the involvement of the biological father in the life of the child are to be governed solely by what is in the child’s best interests.” J.S.A. v. M.H., 224 Ill. 2d 182, 211, 863 N.E.2d 236, 253 (2007). The supreme court went on to direct:
“Accordingly, ‘even though paternity may be established upon the filing of a petition pursuant to section 7(a), any parental rights of the biological father, such as the right to have custody of, or visitation with, the child, shall not be granted unless it is in the child’s best interest.’ [Citation.]
Therefore, under this statutory scheme, subsequent to the circuit court’s declaration of paternity that court is required to conduct a best-interests hearing to determine whether, and to what extent, the natural father may exercise any rights with respect to the child.” J.S.A., 224 Ill. 2d at 212, 863 N.E.2d at 253.
The majority apparently disagrees with the supreme court’s construction of section 14(a); superimposes its own; and reverses the trial court for doing exactly what the supreme court told it to do: Hold a best interests hearing to determine what rights or visitation J.S.A. should have with the child.
What we really have here is a modification of visitation as opposed to simply setting up a visitation schedule in a garden variety divorce. J.S.A. totally abandoned T.H. for the first 3V2 years of the child’s life while J.S.A. knew that T.H. and W.C.H. were creating a father-son bond. Only when the mother ended her affair with him did J.S.A. file his action under the Parentage Act. Reasonable people can conclude that J.S.A.’s only motive is to punish M.H. for breaking off the affair, as opposed to his claimed love for the child. Not once in any pleading has J.S.A. suggested that he should have any financial obligations toward the child. He argues that he has other children who would like to meet their little brother. Where were these arguments when T.H. was three months old? Six months? One year? Two years? Three years? J.S.A. has no relationship with this child. The child (now approximately 12 years old) has no relationship with J.S.A. To allow J.S.A. visitation rights with this child would be a “modification of visitation” of the highest order. Therefore, section 607(a) is simply not relevant to the facts of this case.
Furthermore, application of section 607(a) is improper because it presumes to be applied to someone seeking visitation who has full parental rights. For that reason, the burden of proof under section 607(a) is on the person opposing visitation to establish that visitation would endanger the child. A section 607(a) hearing is not a “best-interests” hearing as ordered by the supreme court.
The majority has misread not only the supreme court’s opinion above but also the statute and concluded that a finding of paternity necessarily results in an establishment of a parent-child relationship with all the attendant rights and obligations. When addressing the arguments of M.H. and W.C.H. (that J.S.A. would want to be involved in the child’s life as his “father”), the supreme court said, “As we have recently explained, the right of a biological father to establish paternity to a child born to a marriage does not also mean that the legal rights flowing from the parent and child relationship are automatically conferred.” J.S.A., 224 Ill. 2d at 211, 863 N.E.2d at 253.
The majority’s conclusion that a determination of paternity automatically required the finding of a parent-child relationship between J.S.A. and T.H. is further contradicted by section 15(a) of the Parentage Act, which deals with enforcement. 750 ILCS 45/15 (a) (West 1998). That section states:
“If existence of the parent and child relationship is declared, or paternity or duty of support has been established under this Act ***.” (Emphasis added.) 750 ILCS 45/15(a) (West 1998).
The use of the disjunctive makes it clear that there can be an order of paternity under the Act without the declaration of the existence of a parent-child relationship. The Act defines a parent-child relationship for purposes of the Act to mean “the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” 750 ILCS 45/2 (West 1998).
Under section 5 of the Parentage Act, a presumptive father is considered to be a natural father. Therefore, at the time that J.S.A. brought his action, there was a parent-child relationship between WC.H. and T.H. It seems clear from reading the Parentage Act as a whole that a child can have a parent-child relationship with, at most, two people: a mother and a father. There is nothing in the Act that allows J.S.A., or one similarly situated, to bring an action to declare the nonexistence of the parent-child relationship between T.H. and WC.H. Section 7(b) identifies those who can bring an action to declare the nonexistence of the parent-child relationship as “the child, the natural mother, or a man presumed to be the father under subdivision (a)(1) or (a)(2) of Section 5 of this Act.” 750 ILCS 45/7(b) (West 1998). No mention of one in J.S.A.’s position.
Section 8(3) would bar any attempt by WC.H. or M.H. to bring an action to declare the nonexistence of the parent-child relationship between T.H. and W.C.H. as more than two years have passed since they obtained knowledge of “relevant facts.” 750 ILCS 45/8(a)(3) (West 1998). Under the Act, the only person who can now attack the parent-child relationship between T.H. and WC.H. is T.H. Of course, it is worth saying again that W.C.H., in words and conduct, has made it abundantly clear that he has no desire to declare the nonexistence of a parent-child relationship with his son, T.H. The purpose of the Illinois Parentage Act (formerly known by less sensitive terms) has always been to make sure that parents supported their children. Berg v. Garrett, 224 Ill. App. 3d 619, 587 N.E.2d 1 (1992); People ex rel. Blackmon v. Brent, 97 Ill. App. 2d 438, 240 N.E.2d 255 (1968).
The majority opinion, finding a parent-child relationship between J.S.A. and T.H., seems to presuppose that upon the DNA match between J.S.A. and T.H., the legal parent-child relationship between W.C.H. and T.H. simply evaporated. It did not. Nor did it evaporate upon the order of paternity. No court has found the nonexistence of the parent-child relationship between WC.H. and T.H. As indicated above, J.S.A. is not a person who can petition the court for such an order.
Quite bluntly, the purpose of the Act was to keep children born out of wedlock from becoming wards of the State and making sure that they had someone who was legally obligated to support them. W.C.H. still has a parent-child relationship with T.H. and the only person who can now attack that relationship is T.H. 750 ILCS 45/ 8(a)(3) (West 1998). The Act does not identify someone in J.S.A.’s position as one who can attack the parent-child relationship between T.H. and WC.H. See 750 ILCS 45/7(b) (West 1998). Expressio unius est ex-clusio alterius.
The court below did exactly what the supreme court told it to do. It held a best interests hearing with evidence stipulated to by the parties and denied J.S.A. visitation rights. I would affirm the order and let the adoption proceed. Furthermore, I would vacate the finding of contempt against WC.H. (We acknowledge that the evidence sought from W.C.H. is irrelevant to any issue.)
II
The above dissent is based upon my best attempt to interpret and apply the supreme court’s decision in J.S.A., 224 Ill. 2d 182, 863 N.E.2d 236. However, the J.S.A. decision misses the point of the Parentage Act and stands the true intent (as well as the clear language) of the legislature on its head. Furthermore, the decision misinterprets the Adoption Act. The supreme court had some help in misinterpreting the Adoption Act since we also got it wrong in our previous decision. J.S.A., 361 Ill. App. 3d 745, 841 N.E.2d 983.
In our 2005 opinion, we held that because he had not filed with the Putative Father Registry, J.S.A. could not even bring the paternity action. J.S.A., 361 Ill. App. 3d at 749, 841 N.E.2d at 986. We were wrong as the supreme court correctly noted. J.S.A., 224 Ill. 2d at 210, 863 N.E.2d at 252. The Adoption Act defines a “putative father” for purposes of the Act as “a man who may be a child’s father, but who (1) is not married to the child’s mother on or before the date that the child was or is to be born and (2) has not established paternity of the child in a court proceeding before the filing of a petition for the adoption of the child.” (Emphasis added.) 750 ILCS 50/1 (R) (West 1998). This language clearly shows that the Putative Father Registry is not an issue until an adoption action is filed. Had J.S.A. secured an order of paternity before the adoption action was filed, then he would not be a “putative father” for purposes of the Adoption Act and the Putative Father Registry would not apply. However, that is not what happened here. An adoption action was filed by WC.H. and, therefore, under the clear language above, the paternity action should have been dismissed on motion since J.S.A. provided none of the statutory reasons for failing to file with the Putative Father Registry and, therefore, was barred from “bringing or maintaining any action to assert any interest in the child.” (Emphasis added.) 750 ILCS 50/12.1(g) (West 1998).
The supreme court stated “the plain language of both the Parentage Act and the Putative Father Registry provides no indication that the Putative Father Registry provisions were intended by the General Assembly to apply to filings under the Parentage Act when there is no adoption action pending or contemplated at the time a parentage action is filed.” J.S.A., 224 Ill. 2d at 207, 863 N.E.2d at 251. This language by the supreme court ignores the “or maintaining” language of section 12.1(g) (750 ILCS 50/12.1(g) (West 1998)). It also ignores the definition of putative father as one who “has not established paternity of the child in a court proceeding before the filing of a petition for the adoption of the child.” (Emphasis added.) 750 ILCS 50/1(R) (West 1998). How much of an indication do we need? Had the legislature agreed with the supreme court, section (2) of the definition of putative father at section 1(R) would read “has not filed a paternity action in a court before the filing of a petition for the adoption of a child.” Furthermore, if the supreme court is correct, there would no reason for the “or maintaining” language in section 12.1(g), since the filing of a paternity action before the filing of an adoption action would prevent the dismissal of any action on file. The “or maintaining” language at section 12.1(g) can only refer to pending actions filed before the adoption petition. Otherwise, the phrase “or maintaining” is meaningless surplusage, a construction which is to be avoided. Caveney v. Bower, 207 Ill. 2d 82, 90, 797 N.E.2d 596, 600 (2003).
In its decision, the supreme court seemed to find several facts relevant. It appears that the court does not consider the adoption action filed by WC.H. as a bona fide adoption. See J.S.A., 224 Ill. 2d at 205, 863 N.E.2d at 250-51. What could be a more bona fide adoption than one filed by a man who had raised the child from birth and had just recently learned that someone else was claiming to be the child’s biological father? Adoptive parents will tell those who have never had the experience that DNA markers have nothing to do with the love between a parent and child. They will tell you that it is inconceivable to them that one could love a biological child more than they love their adopted child. Would the adoption be “bona fide” if a man who had only just met the child was trying to adopt him?
The supreme court also looked at the public policy behind the Parentage Act as the right of every child to the physical, mental, emotional and monetary support of his or her parents under this Act. J.S.A., 224 Ill. 2d at 198, 863 N.E.2d at 246. T.H. has always had that with W.C.H. and M.H.
Another apparent factor in the supreme court’s decision is the statement that J.S.A. should not have expected an adoption action to be filed. J.S.A., 224 Ill. 2d at 206, 863 N.E.2d at 250. Where did this come from? What does what J.S.A. expected or did not expect have to do with anything? Why would J.S.A. not expect WC.H. to file an adoption action in the face of the news that some other man was claiming to be the father? Had M.H. been single when she had an affair with J.S.A., and if W.C.H. were now trying to adopt T.H., would the same argument work? The stability of T.H.’s life is no less important because he was born into the marriage of M.H. and WC.H. than it would be had he been born to a single parent. There is nothing in the language of either the Adoption Act or the Parentage Act which could make what J.S.A. expected or did not expect to be relevant to the facts of this case. Furthermore, J.S.A. knew that he was the biological father of T.H. from at least the time of T.H.’s birth. He also knew that neither WC.H. nor T.H. knew of this. Of course, W.C.H. did not file an adoption action before J.S.A. filed his paternity action. WC.H. did not think he had a reason to adopt T.H.; he thought he was the biological father.
In support of its position that J.S.A. should not have expected an adoption action to be filed, the court notes that “W.C.H. took the position — even in the adoption petition itself — that he was the child’s biological father.” J.S.A., 224 Ill. 2d at 206, 863 N.E.2d at 250. First of all, what WC.H. pled in his adoption petition has nothing to do with what J.S.A. would or should have expected before the petition was filed. Second, the proof was not in on the paternity action when the adoption petition was filed. Why should W.C.H. be required to admit that he was not the biological father when he did not even know that he was not the biological father and had just recently been hit with allegations that he was not? With all due respect, it seems 180 degrees from fair to punish W.C.H. for his lack of knowledge of facts known by J.S.A. for at least 3V2 years before he filed his paternity action. The only reason J.S.A. would not expect WC.H. to file an adoption petition is that J.S.A. knew he had knowledge superior to that of W.C.H. All of this being said, there is no statutory basis for considering what J.S.A. did or did not expect.
The supreme court also concluded that if it were to take the arguments advanced at bar by M.H. and W.C.H. to their logical conclusion, “no biological father could ever bring a petition to establish a father-child relationship if he failed to register with the Putative Father Registry within 30 days of the child’s birth.” J.S.A., 224 Ill. 2d at 210, 863 N.E.2d at 252. Not so. I do not know for sure what arguments M.H. and W.C.H. advanced at the bar before the supreme court, but most likely they argued the incorrect holding of this court. I participated in that decision and it is my position now that that decision was wrong. However, the law is too important for a judge to try to defend a prior decision when it was clearly erroneous. The supreme court’s fears that no biological father could ever bring a petition to establish the father-child relationship if he failed to register with the Putative Father Registry within 30 days of the child’s birth are allayed with the correct reading of the statutes. One needs to look at the definition of putative father contained at section 1(R) (750 ILCS 50/1(R) (West 1998)). Until the adoption action was filed, J.S.A. was not a putative father under the Act and, therefore, the Putative Father Registry was no bar to his paternity action. However, when the adoption action was filed before paternity was established, J.S.A. became a putative father and was barred from interfering in the adoption or maintaining his action to establish a parent-child relationship with T.H. See 750 ILCS 50/l(R), 12.1(g) (West 1998). The statutory language and therefore the legislative intent could not be clearer.
Under the correct reading of the relevant statutes, a man claiming to be the biological father of a child and who has not registered with the Putative Father Registry within the statutory period and who has no other statutory excuses for not having registered can still bring a parentage action at any time until the child’s twentieth birthday subject to the provisions of the Adoption Act. If the adoption action is filed before the paternity action is filed, the paternity action must be dismissed immediately upon motion. If an adoption action is filed before the man has established paternity of the child in a court proceeding, then the pending action cannot be maintained and must be dismissed upon motion. See 750 ILCS 50/l(R), 12.1(g) (West 1998). On the other hand, if no one seeks to adopt the child before paternity is established, then an order of paternity may be entered.
There is no doubt that the legislature indicated that the existence of a presumptive father is no bar to a paternity action by someone claiming to be the biological father of a child. See J.S.A., 224 Ill. 2d at 203, 863 N.E.2d at 248. However, it cannot reasonably be construed to mean that somehow the legislature intended to give more rights to a man who has an affair and impregnates a married woman than one who has an affair and impregnates a single woman. The language simply means what it says: that the existence of a presumptive father is no bar to bringing a paternity action. If the presumptive father does not file an adoption action, the paternity action may proceed.
In conclusion, the plain language of the Adoption Act (750 ILCS 50/1 (R), 12.1(g) (West 1998)) makes it clear that the court was wrong when it stated “the plain language of both the Parentage Act and the Putative Father Registry provides no indication that the Putative Father Registry provisions were intended by the General Assembly to apply to filings under the Parentage Act when there is no adoption action pending or contemplated at the time a parentage petition is filed.” J.S.A., 224 Ill. 2d at 207, 863 N.E.2d at 251. I respectfully submit that we got it wrong1 the first time and this error on our part may have misguided the parties and the supreme court, leading to the supreme court’s decision in J.S.A. The decision cannot be defended on the basis of either sound social or legal policy. I can think of no social or legal policy that supports this decision. As a result of this decision, we argue in our court whether the common law dictates of the supreme court or the statutory directive of the legislature control what type of hearing must be held below (best interest or section 607(a)) on the issue of J.S.A.’s claims for visitation. The unspoken problem is that the supreme court’s decision leaves in its wake the question: who is T.H.’s legal father? If J.S.A. is the legal father, the majority correctly holds that a section 607(a) hearing is appropriate. If W.C.H. is the legal father, why should J.S.A. have visitation under any circumstances? What is WC.H.’s status? Who now has the legal duty to support T.H.? Is there some kind of hybrid “legal father” with no duties but rights to visitation?
A correct reading of the statutes would obviate the need for the courts to fashion common law to deal with this situation. Under the facts of this case, and because the adoption action was filed before paternity was established in a court proceeding, the paternity action should have been dismissed on motion and the adoption action should have gone forward.
As a matter of a social and legal policy, the supreme court should revisit its decision in J.S.A.
While the result in our J.S.A. (361 Ill. App. 3d 745, 841 N.E.2d 983) decision was the correct one, the analysis was flawed for the reasons set forth above. J.S.A.’s paternity action should have been dismissed, not because it was void ab initio, but rather because W.C.H. and M.H. filed an adoption action before paternity was established in a court proceeding.