dissenting:
I respectfully dissent. The current order of visitation is against the manifest weight of the evidence.
In child custody and visitation cases, it is difficult for witnesses close to a party to be objective and unbiased. Here, one witness who testified cannot be considered biased or prejudiced in favor of any of the parties.
Psychologist John Day was first contacted by Tom’s attorney for the purpose of evaluating Brandon as to the custody issue. After Day was contacted by Tom, he was also used by Kara and Jeff for purposes of evaluation of Brandon. Day did not know any of the parties prior to being contacted by Tom and it is clear Day was not in the posture of a so-called "hired gun.”
The following are some excerpts from his testimony:
"[Tjhere is no psychological, pathological reason to be concerned about the adult persons in the case.
* * *
*** [I]t was not being particularly helpful to force the relationship and the child was perceiving it as something that was forced. I think the parents worked very hard to make sure they stayed absolutely neutral.
H: $ $
*** [T]he child’s relationship with the parents seemed like what we would call a nuclear family. There was a family intact. Clear family identity. The child had established himself in a home and in a geographic location and he had very clear identity of who he was in that regard and who his parents were and he referred to Jeff and to Kara as mom and his dad. The relationship with Tom, because it’s sporadic and so on, was much more distant and so that close bonding was not there and he was bonding into this family unit.
* * *
*** If there’s to be a relationship, it’s going to have to be in a more relaxed voluntary level on the part of the child anyway. I think this is working against the very things that Tom would like to have happen.
Q. Can you explain that a little bit.
A. Well, the anger of the child. The irritation of having to come down here. That becomes personalized to Tom and, you know, as a result Tom kind of gets the brunt of it is what I’m sensing with the child. I’m not sure — that certainly isn’t constructive to building a relationship to child and adult.
Q. *** [I]f he continues to have one weekend a month of court-ordered visitation with Tom, your professional opinion is likely to result in what?
A. Greater psychological distance and barrier with Tom. That’s what I alluded to. I don’t think that serves Tom’s own best interest.”
Keeping in mind that the judge, not the child, makes visitation determinations, the in camera interview with Brandon was negative as to a seven to eight year old’s desire to visit Tom.
In addition, the GAL strongly recommended that visitation with Tom was not in the best interests of Brandon.
A review of the trial judge’s statements in granting visitation gives the appearance that because Tom and his family are good people, there should be visitation.
Under section 607(a) of the Act (750 ILCS 5/607(a) (West 1994)), a parent not granted custody has a right to visitation. Section 14(a)(1) of the Illinois Parentage Act of 1984 (750 ILCS 45/14(a)(1) (West 1994)), however, establishes visitation as a privilege in a paternity action. I would find the serious endangerment standard set forth in section 607(a) does not apply to a person in a status similar to Tom. However, even under the serious-endangerment standard of section 607(a) of the Act, the paramount concern is still the best interest of the child. Crichton v. Crichton, 75 Ill. App. 3d 326, 329-30, 393 N.E.2d 1319, 1321-22 (1979), citing Blazina v. Blazina, 42 Ill. App. 3d 159, 167, 356 N.E.2d 164, 170-71 (1976). Roberts, 271 Ill. App. 3d at 976, 649 N.E.2d at 1347, is distinguishable from this case. In Roberts, there was expert testimony of a strong bond between the minor child and the mother’s former husband and that disruption of the relationship would have a serious impact on the child’s ability to develop long-term relationships.
During closing argument, Marcia Straub, the GAL, pointed out that if the relationship in this case continued, Brandon would be continuously reminded he was part of some kind of dysfunctional strange situation. He had been subjected to the selfishness of the adults and the disputes that arose surrounding this issue. His social and educational development had been disrupted. As a result, she recommended that the periodic visitation every three weeks should discontinue.
Tom’s interest in the child should not be discouraged, but he should, in the best interest of the child, take a step back and reconsider his role in the child’s life.
A manifest injustice has been done to Brandon in this case. I would reverse the judgment of the trial court.