The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Custody of C.C., 2013 IL App (3d) 120342
Appellate Court In re CUSTODY OF C.C., a Minor (Erica L.F., Petitioner-Appellee, v.
Caption DAVID H.C., Respondent-Appellant (Klay B., Intervenor-Appellant)).
District & No. Third District
Docket No. 3-12-0342
Filed December 9, 2013
Held In a paternity action where a paternity order was issued by the trial court
(Note: This syllabus based on the acknowledgment of paternity executed by respondent the
constitutes no part of day after the delivery of a child by petitioner and then intervenor sought
the opinion of the court to vacate that order two years later based on his claim that he was the
but has been prepared child’s biological father, the trial court refused to vacate the order but did
by the Reporter of grant intervenor’s request for visitation and an order requiring him to pay
Decisions for the child support, and further ordered intervenor to pay a portion of the
convenience of the attorney fees petitioner incurred due to the intervention, the award of
reader.)
attorney fees was reversed on appeal based on intervenor’s income and
the appellate court decided it lacked jurisdiction to consider intervenor’s
contentions that his motion to vacate the paternity order should have been
granted and that the child support order entered against him should have
been based on less than 20% of his income because the child had a
second legal father.
Decision Under Appeal from the Circuit Court of Fulton County, No. 08-F-68; the Hon.
Review Edward R. Danner, Judge, presiding.
Judgment Reversed.
Counsel on Jeff L. Neigel (argued), of Law Offices of Jeff Neigel, of Canton, for
Appeal appellant.
Thomas B. Ewing, and Joan C. Scott (argued), both of Ewing & Scott, of
Lewistown, for appellee Erica L.F.
David H. Coufal, of Astoria pro se.
Joseph C. O’Donnell, of Macomb, guardian ad litem.
Panel PRESIDING JUSTICE WRIGHT delivered the judgment of the court,
with opinion.
Justice Lytton concurred in the judgment and opinion.
Justice Schmidt concurred in part and dissented in part, with opinion.
OPINION
¶1 Petitioner, Erica L.F., initiated this action in 2008 seeking an order determining custody
and support for the minor, C.C. Based on Erica’s petition, the circuit court of Fulton County
issued a paternity order in 2008 determining David H.C. to be the father of C.C. based on
Erica and David’s voluntary acknowledgment of paternity executed the day after C.C.’s birth.
Two years later, the intervenor, Klay B., asked the court to vacate the 2008 order naming
David as C.C.’s parent because Klay alleged he was the child’s actual biological father. The
trial court refused to vacate the 2008 order declaring David to be C.C.’s father, but granted
Klay’s request to receive court-ordered visitation and his request to be ordered to pay the full
statutory percentage of his net income for C.C.’s child support. In 2011, the court further
ordered Klay to pay a portion of Erica’s attorney fees incurred as a result of Klay’s
intervention in case No. 08-F-68.
¶2 Klay appeals the order requiring him to pay one-third of Erica’s attorney fees and
refusing to vacate the 2008 order naming David as the legal father of C.C., as requested in
Klay’s 2009 motion pursuant to section 2-1401 of the Code of Civil Procedure (the Code)
(735 ILCS 5/2-1401 (West 2008)). Alternatively, if this court does not set aside the 2008
paternity order naming David as C.C.’s legal father, Klay asks this court to revisit the issue
of whether Klay’s child support payment should be based on less than 20% of his income
since C.C. continues to have another legal father, namely, David.
¶3 We reverse the court’s award of attorney fees, but decline to address the other issues
regarding Klay’s section 2-1401 motion and the appropriate percentage for Klay’s child
support, if any, due to lack of jurisdiction.
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¶4 BACKGROUND
¶5 In late 2006 or early 2007, Erica had sexual relations with both David and Klay and
became pregnant. Erica initially suggested to Klay that he could be the father of her unborn
child. However, a week later Erica told Klay a doctor informed her that it was extremely
unlikely that Klay was, in fact, the father of her child. Erica gave birth to C.C. on October
18, 2007. The following day, Erica and David signed a voluntary acknowledgment of
paternity (VAP), identifying David as the child’s biological father.
¶6 On June 18, 2008, Erica filed a “Petition for Child Custody and Child Support,” in case
No. 08-F-68, requesting the court to enter an order legally designating David as the father of
C.C., based on the VAP, pursuant to section 14 of the Illinois Parentage Act of 1984 (the
Parentage Act) (750 ILCS 45/14 (West 2008)). On November 6, 2008, the trial court entered
an agreed order finding Erica and David to be “the parents of [C.C.],” awarded sole custody
to Erica subject to David’s scheduled visitation, and settled financial matters such as support,
insurance, and tax exemptions.
¶7 Erica’s relationship with David temporarily ended in 2008. Thereafter, Erica rekindled
her relationship with Klay in early 2009, thereby triggering Klay’s suspicions that he may be
C.C.’s biological father. Consequently, in June 2009, Klay filed a motion, pursuant to section
2-1401, to vacate the orders naming David the father of C.C., in case No. 08-F-68. Klay also
initiated an independent action seeking to establish a father-child relationship in case No. 09-
F-50 .
¶8 On July 9, 2009, Erica filed a motion to strike Klay’s section 2-1401 pleading, in case
No. 08-F-68, on the grounds that Klay lacked standing to file any pleadings in the paternity
action involving David because Klay was not a named party. On July 10, 2009, the trial court
granted Klay leave to file a petition to intervene in case No. 08-F-68, and to withdraw his
initial section 2-1401 motion. The court also allowed Klay to dismiss his independent
parentage action, on July 10, 2009, in case No. 09-F-50.
¶9 Next, on July 22, 2009, Klay filed three pleadings in the 2008 paternity action involving
David. Klay asserted Erica recently resumed her relationship with David and refused to allow
Klay to have continued contact with C.C. Klay’s petition to intervene claimed that Erica and
David, either fraudulently or based on a material mistake of fact, signed VAP in 2007 for the
purpose of depriving Klay of his parental rights to C.C.
¶ 10 Klay’s second pleading, a petition to determine the existence of a father-child
relationship, asked the court to order deoxyribonucleic acid (DNA) testing to support a
subsequent finding that Klay is the biological father of C.C. The petition asked the court to
award joint custody to Klay and Erica, naming Erica residential custodian with rights of
reasonable visitation for Klay. The petition further requested that the court order C.C.’s last
name be changed to Klay’s last name. Finally, Klay requested the court to enter an order
fixing his child support obligations at “20% of his net income as calculated pursuant to
Section 505 of the [Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/505
(West 2008))].”
¶ 11 Klay’s third pleading, filed in case No. 08-F-68 on July 22, 2009, was a new motion for
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relief from judgment pursuant to section 2-1401 of the Code. 735 ILCS 5/2-1401 (West
2008). Klay’s motion alleged that Erica and David, either fraudulently or through a mistake
of fact, signed the VAP to deprive Klay of his potential parental rights to C.C. Therefore,
Klay requested the trial court to vacate the order entered November 6, 2008, finding Erica
and David to be the legal parents of C.C., and any subsequent orders related to David being
C.C.’s father. Klay alleged Erica did not contact him before David signed the 2008 VAP, the
day after C.C.’s birth, and failed to notify Klay when she filed the paternity action against
David, in case No. 08-F-68.
¶ 12 On August 18, 2009, Erica filed a response to Klay’s motion to intervene. David also
filed an answer objecting to Klay’s petition to intervene on August 25, 2009. In Erica’s
response, Erica objected to Klay’s standing to intervene. According to Erica, the statute did
not allow a third party to come into court and determine the nonexistence of a previously
declared legal father of a child. Further, Erica claimed Klay waived the right to seek paternity
or challenge the existing paternity of C.C., since he was informed she was pregnant in 2007.
¶ 13 The court held a hearing on Klay’s petition to intervene. The court found Klay knew of
Erica’s pregnancy when it occurred and also found David was adjudicated as C.C.’s father
by court order based on a conclusive acknowledgment of paternity. Therefore, the court
initially denied Klay’s petition to intervene.
¶ 14 One month after Klay sought to intervene in the 2008 paternity action, David ceased
paying court-ordered child support. On September 17, 2009, the court entered an order, as
agreed by David and Erica, terminating David’s obligation to pay any amount of child
support to the State disbursement unit because Erica and David were once again residing
together and mutually providing for C.C.
¶ 15 Subsequently, on September 24, 2009, Klay filed a motion to reconsider the denial of his
petition to intervene. Erica moved to strike this motion to reconsider, and David joined in
that motion. After a hearing, on February 5, 2010, the trial court reconsidered its earlier
decision and then orally granted Klay’s petition to intervene in case No. 08-F-68. The trial
court entered a written order memorializing its oral decision on February 18, 2010. The court
also allowed the parties to proceed on Klay’s petition to establish the existence of a father-
child relationship and his section 2-1401 motion.
¶ 16 On April 28, 2010, pursuant to Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)), the trial
court certified two questions for interlocutory appeal to this court: (1) whether the trial court
has subject matter jurisdiction to make a determination as to the existence of a father-child
relationship between another putative father where a parent-child relationship had previously
been established by a VAP; and (2) whether the presumption of paternity created by a VAP
is conclusive as to the intervenor pursuant to the Parentage Act (750 ILCS 45/1 et seq. (West
2008)). This court declined to review the certified questions and issued a mandate on August
12, 2010, denying leave to appeal. In the interim, the trial court granted Klay’s request for
DNA testing on May 10, 2010.
¶ 17 After this appellate court denied the Rule 308 petition for leave to appeal, the court
appointed a guardian ad litem (GAL) to represent the child’s best interests on August 31,
2010. On December 8, 2010, the court received the DNA test results verifying Klay was the
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biological father of C.C., but the court did not make a formal finding that Klay was the father
of the child at that time. Subsequently, on December 8, 2010, the court held a hearing on
Klay’s section 2-1401 motion to vacate the 2008 order naming David the father of C.C., as
well as Erica’s motion to dismiss Klay’s section 2-1401 motion.
¶ 18 After previously meeting with Erica, David, Klay, and C.C., the GAL advised the court
it was in C.C.’s best interests for all three “parents” to be involved in C.C.’s life for the
following reasons. First, C.C. had a close relationship with her mother, who was living with
David and the child. Next, David shared a close relationship with C.C. and was the only
father figure C.C. had known in her first three years of life. Finally, Klay truly cared about
C.C. and he was her biological father.
¶ 19 At the close of the hearing regarding Klay’s section 2-1401 motion, the court found that
the Parentage Act provided that a VAP established in accordance with statute has the “full
force and effect of a judgment entered under this [Parentage Act] and serves as a basis for
seeking a Child Support Order without any further proceedings to establish paternity.” The
court further found that Klay’s section 2-1401 motion was, in effect, an attempt to obtain a
declaration of the nonexistence of David’s parent and child relationship, a cause of action
pursuant to section 7(b) of the Parentage Act which can be initiated only by the child, the
child’s natural mother, or a VAP father. The court concluded that it did not have the
authority to grant a third party’s section 2-1401 motion under these circumstances, ruling:
“The [section 2-1401] motion attempting to invalidate the parent-child relationship
established by the VAP is denied.” The court further found that no fraud occurred, but there
appeared to be a mistake of fact.
¶ 20 After verbally asking Klay about his income in open court, on December 8, 2010, the
court temporarily ordered Klay to pay 20% of his income for child support in the amount of
$200 per week. Thereafter, on December 28, 2010, the court referred all three parties, Erica,
David, and Klay, to attend mediation regarding Klay’s visitation schedule with C.C.
¶ 21 On February 14, 2011, following a hearing, the court entered a written order denying
Klay’s section 2-1401 motion to vacate the 2008 order naming David as C.C.’s father. The
court entered a separate written order finding Klay to be C.C.’s biological father and
continued the previous order requiring Klay to pay temporary child support at $200 per week
pending further review. The order also awarded Klay temporary visitation with C.C. on a
biweekly basis, but denied Klay’s request to change C.C.’s last name. This order further
denied Klay’s “prayer that the Court correct ‘all erroneous prior orders, findings or
documents.’ ”
¶ 22 On June 29, 2011, Erica filed a petition seeking contribution for payment of her attorney
fees from Klay, without reference to David’s obligations to share her fees. On July 5, 2011,
Klay filed a motion asking the court to find that the statutory guidelines for child support
should not apply in the instant case because the child has three legal, able-bodied parents
who could support the child.
¶ 23 The court held a hearing on these two motions on July 13, 2011. At the close of the
hearing, the court refused to reduce Klay’s child support obligation below 20%, denying
Klay’s motion to deviate downward from the statutory guidelines, and fixed Klay’s child
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support payments at $150 per week, calculated at the rate of 20% of his current net income.
The court determined the order setting Klay’s temporary child support at a higher rate
beginning on December 8, 2010, resulted in Klay’s overpayment of $1,450 in child support
to Erica. Accordingly, the court ordered $10 should be deducted each week from Klay’s child
support until the overpayment was satisfied. The court also entered an “Agreed Visitation
Order” at this hearing, which extended Klay’s visitation with the minor. At the close of this
hearing, the court noted on the record that two remaining matters existed: whether to allow
overnight visitation for Klay and how C.C. was responding to the current visitation schedule.
The court scheduled a hearing on these two matters for September 19, 2011.
¶ 24 Based on its July 13 oral ruling, the court entered a written “Uniform Order for Support”
on July 28, 2011, for wage withholding purposes. The court entered a final written order, on
August 5, 2011, reflecting the totality of its oral ruling after the July 13 hearing.
¶ 25 On September 19, 2011, by agreement of the parties, the court entered an order allowing
supplemental overnight visitation with C.C. as requested by Klay. In the same order, the
court set the hearing date for the GAL’s petition for fees and Erica’s petition for contribution
for her attorney fees for the date of October 17, 2011. On September 19, 2011, Erica also
filed a petition to compel Klay to pay one-half of C.C.’s medical and related expenses that
were not covered by insurance.
¶ 26 On October 17, 2011, the court entered an order resolving Erica’s request for contribution
for the child’s unpaid medical expenses by requiring both David and Klay to split the
additional expenses equally. The court also entered an order requiring Erica to pay $500 of
the GAL fees, totaling $4,088.50, and directed both David and Klay to pay $1,794.25 each,
representing equal shares of the remaining balance. The court’s October 17, 2011, order
resolved all pending motions and petitions with the exception of Erica’s petition for
contribution toward her attorney fees filed on June 29, 2011. The court directed Erica’s
counsel to prepare a written order.
¶ 27 On October 28, 2011, Erica’s attorney sent a letter to opposing counsel with the attached
proposed order concerning GAL fees for opposing counsel’s signature. This letter also
proposed a settlement of the issues related to Erica’s petition for contribution for attorney
fees. In addition, on the same date, Erica’s counsel sent all parties a notice of hearing to enter
the order from the October 28, 2011, hearing and to schedule the hearing on the issue of
attorney fees to be heard by the trial judge on January 11, 2012 at 10 a.m. On January 11,
2012, the matter was rescheduled due to illness of counsel and ultimately reset for entry of
an order (from the hearing held on October 28, 2011) and for a hearing on Erica’s attorney
fees petition on March 7, 2012. On February 27, 2012, the court entered the order reflecting
its oral ruling from the hearing on October 28, 2011.
¶ 28 The court received testimony from Erica on March 7, 2012, regarding her petition for
contribution toward her attorney fees. Erica testified she was an unemployed college student
who lived with, and relied on, David, the VAP father, for her financial support. The evidence
showed that, at the time of the hearing, Erica had accumulated $19,436 in legal fees and paid
approximately $3,000. She alleged she had no ability to pay the remainder of those fees.
¶ 29 David next testified at this hearing, stating his ability to work as a union carpenter was
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limited by a herniated disk in his back. At the time of the hearing, David’s income consisted
of gross unemployment compensation of $552 per week and $2,000 net profit in 2011 from
working with his father as a commercial fisherman. David stated he had $4,000 of
outstanding medical bills and roughly $11,500 in unpaid legal fees, after already paying his
attorney approximately $7,000 to $8,000.
¶ 30 Klay testified he, too, was receiving unemployment compensation after being laid off as
a union carpenter. He currently lived with his fiancée and three small boys, one of whom was
his biological son with his fiancée. Klay had $3,000 of credit card debt for furniture and over
$15,000 in legal fees concerning his paternity status of C.C. He testified he had paid
approximately $13,000 toward his attorney fees at the time of the hearing. Klay argued he
did not have the financial ability to contribute payments toward Erica’s attorney fees.
¶ 31 The court noted that the issue before the trial court presented novel questions involving
the fundamental rights of establishing a relationship with a child. The court observed David
had stepped forward since the child’s birth and raised C.C. as his own, whether she was his
biological child or not. The court indicated that Erica told Klay about being pregnant and
Klay did not come forward to establish his paternity of the child until much later.
¶ 32 The court also stated it did substantial research of its own and had some concerns about
the shortcomings in the Parentage Act and inconsistencies in the authorities. The judge noted
he was the one who wanted the appellate court to answer the certified questions in an
interlocutory appeal after researching the issues. Based upon the novel question before the
court and the complexity of the case, the court found all attorney fees to be reasonable and
directed Erica’s counsel to prepare the written order for the court’s signature.
¶ 33 On March 28, 2012, the court entered a written order directing Klay to pay, within one
year, one-third of Erica’s attorney fees, totaling $6,438.38. Klay filed his notice of appeal on
April 27, 2012, challenging not only the March 28, 2012, order requiring him to pay one-
third of Erica’s attorney fees, but also challenging previous orders entered on February 14,
2011, and August 5, 2011.
¶ 34 On September 6, 2012, Erica filed a motion with this court to dismiss the entire appeal
for lack of jurisdiction due to Klay challenging the orders entered on February 14, 2011, and
August 5, 2011, after Klay did not file a notice of appeal within 30 days of those final orders.
Klay responded that those orders did not resolve all pending matters, and therefore, they were
not final and appealable orders. This court entered a minute order, on October 4, 2012,
indicating Erica’s motion to dismiss the appeal and Klay’s response would be “taken with
the case.”
¶ 35 ANALYSIS
¶ 36 In this case, Klay filed a notice of appeal on April 27, 2012, challenging three separate
rulings by the trial court. First, Klay questions the court’s February 14, 2011, order denying
Klay’s section 2-1401 motion to vacate a previous 2008 paternity order finding David to be
C.C.’s father. Second, although Klay agreed the court should order him to pay some amount
of his biological daughter’s child support, Klay contests the August 5, 2011, order denying
his request for a downward departure from the statutory guidelines. Third, Klay submits the
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court’s March 28, 2012, order erroneously required him to pay one-third of Erica’s legal fees
without first finding he had the ability to pay those fees. We begin our analysis by reviewing
the March 28, 2012, order concerning attorney fees.
¶ 37 I. Attorney Fees
¶ 38 On March 28, 2012, the trial court found it was appropriate for Klay to pay one-third, or
$6,438.38, of Erica’s attorney fees. The court also ordered David to pay one-third of Erica’s
fees as well.
¶ 39 Klay filed his timely notice of appeal regarding the court’s ruling with respect to attorney
fees on April 27, 2012. Since this court has jurisdiction to consider this issue raised in Klay’s
appeal, we decline to allow Erica’s motion to dismiss the entire appeal.
¶ 40 The allowance of attorney fees and the amount awarded are matters within the sound
discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.
In re Marriage of Sobieski, 2013 IL App (2d) 111146, ¶ 37; In re Marriage of Suriano, 324
Ill. App. 3d 839, 846 (2001). A trial court abuses its discretion when it acts arbitrarily,
without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds
of reason and ignores recognized principles of law. In re Marriage of Bradley, 2011 IL App
(4th) 110392. An abuse of discretion occurs when no reasonable person would take the view
adopted by the trial court. In re Marriage of Polsky, 387 Ill. App. 3d 126 (2008).
¶ 41 Section 17 of the Parentage Act authorizes the court to award statutory attorney fees “in
accordance with the relevant factors specified in Section 508 of the Illinois Marriage and
Dissolution of Marriage Act.” 750 ILCS 45/17 (West 2008). The propriety of an award of
statutory attorney fees is dependent upon a showing, by the party seeking fees, of an inability
to pay and the ability of the other party to do so. Sobieski, 2013 IL App (2d) 111146, ¶ 49.
¶ 42 The evidence presented to the court in support of Erica’s request for Klay to pay her
attorney fees established she accumulated a total of $19,436 in legal fees for purposes of
proceeding in this paternity action, including $3,000 Erica previously paid to her attorney.
Klay testified he was receiving unemployment compensation; resided with his fiancée and
three small boys, including his own biological son; had $3,000 in credit card debt; and owed
a balance of $2,000 toward his own $15,000 incurred in attorney fees in this case.
¶ 43 After receiving the evidence, the court suggested Klay should secure a loan for the
purpose of paying one-third of Erica’s attorney fees. This suggestion implies the court
recognized Klay was unable to pay the fees based on his current income. Since the court did
not make a specific finding that Klay had the ability to pay Erica’s attorney fees and the
record does not suggest Klay had the requisite ability to pay, we conclude the trial court
abused its discretion by requiring Klay to pay one-third of Erica’s attorney fees and reverse
that order on this basis alone.
¶ 44 II. Section 2-1401 Motion to Vacate
¶ 45 Next, we consider Erica’s contention, raised in her motion to dismiss, that this court does
not have jurisdiction to revisit the court’s ruling denying Klay’s section 2-1401 motion
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seeking to vacate the 2008 paternity order establishing David’s legal status as C.C.’s father.
The trial court denied the relief requested in Klay’s section 2-1401 motion on February 14,
2011.1
¶ 46 More than a year later, Klay filed his notice of appeal, on April 27, 2012, challenging that
ruling and others. Consequently, Erica contends this court is without jurisdiction to review
the court’s ruling on Klay’s section 2-1401 motion since the notice of appeal was not filed
within 30 days of that decision.
¶ 47 Section 2-1401 of the Code provides a specific statutory procedure to attack final
judgments. 735 ILCS 5/2-1401 (West 2008). Orders “granting or denying relief sought in a
section 2-1401 petition are final and, thus, immediately appealable.” Village of Glenview v.
Buschelman, 296 Ill. App. 3d 35, 39 (1998); Ill. S. Ct. R. 304(b)(3) (eff. Feb. 26, 2010). The
case law provides that a section 2-1401 pleading constitutes a separate action from the
original pleading, in this case, the paternity action against David, and is, therefore, appealable
on grounds independent from those used as a basis for appeal from the original judgment.
Glenview, 296 Ill. App. 3d at 39.
¶ 48 Klay contends he could not appeal the February 14, 2011, ruling on his section 2-1401
motion until after the court resolved Erica’s pending petition for attorney fees. We disagree.
Klay was statutorily required to file a notice of appeal with respect to the denial of his section
2-1401 motion within 30 days of February 14, 2011. In this case, he did not do so. More than
three months after the time expired for either party to file a notice of appeal from the denial
of Klay’s section 2-1401 motion and the order finding Klay to be the biological father of
C.C., Erica filed her first request for Klay to pay a portion of her attorney fees. Thus, Erica’s
motion for attorney fees, dated June 29, 2011, was not pending at the time Klay neglected
to properly perfect his appeal concerning the denial of his section 2-1401 motion, decided
by the court on February 14, 2011.
¶ 49 Accordingly, we conclude Klay’s April 27, 2012, notice of appeal challenging the
February 14, 2011, ruling was not timely. The fortuitous circumstance that Erica
subsequently requested contribution from Klay for her attorney fees did not resurrect the
jurisdiction of this court to review the denial of Klay’s request to vacate David’s 2008
paternity order.
¶ 50 III. Downward Deviation for Klay’s Child Support
¶ 51 Next, we consider Erica’s contention, as alleged in her motion to dismiss, that we do not
have jurisdiction to review whether the trial court properly refused to calculate Klay’s child
support based on less than 20% of his income. Klay contends his notice of appeal was timely
because the trial court did not render a final judgment until it resolved Erica’s request for
contribution for her attorney fees. We review a jurisdictional issue de novo. In re Marriage
1
Erica’s postjudgment petition for attorney fees was not filed until nearly four months
later, after the time expired for either party to appeal the court’s ruling on Klay’s section 2-1401
motion.
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of Gutman, 232 Ill. 2d 145, 150 (2008).
¶ 52 As previously stated, on June 29, 2011, nearly four months after the court denied Klay’s
section 2-1401 motion, Erica filed a motion requesting Klay to contribute to the payment of
her attorney fees. At the time Erica filed this motion for contribution to attorney fees, the
only two remaining unresolved issues with respect to Klay’s petition to intervene involved
the amount of Klay’s permanent child support and whether Klay’s visitation should be
expanded to allow overnight visits. These issues were scheduled to be decided by the court
on July 13, 2011.
¶ 53 A few days after Erica filed her motion regarding fees, Klay filed his motion, on July 5,
2011, requesting the court to deviate from the 20% statutory guidelines when setting his
permanent order of support. Presumably, this request was intended to modify the relief he
originally requested in his petition to establish the existence of a father-child relationship
wherein he requested the court to enter an order requiring him to pay a full 20% of his net
income in child support. Klay’s subsequent motion requested the court to deviate downward
from the 20% statutory guideline, by reducing it in half to just 10%, since C.C. had another
legal father with a similar obligation to make contributions to Erica for C.C.’s financial
support.
¶ 54 The case law provides that an “order is final [when] matters left for future determination
are merely incidental to the ultimate rights that have been adjudicated by the order.” (Internal
quotation marks omitted.) Galvez v. Rentas, 403 Ill. App. 3d 491, 496 (2010) (quoting In re
T.M., 302 Ill. App. 3d 33, 37 (1998)). A careful review of the record shows that after denying
Klay’s request to pay 10% of his net income in child support on August 5, 2011, the trial
court reserved ruling on the overnight visitation issue until a hearing could take place on
September 19, 2011. Thus, the dissent is correct that the August 5, 2011, order was not a
final appealable order.
¶ 55 Once the parties entered an agreed order of visitation on September 19, 2011, all pending
matters on Klay’s petition to intervene were resolved, thereby resulting in a “final
judgment.”2 Consequently, based on Galvez, and precedent from this court discussed below,
Klay should have filed his notice of appeal by October 18, 2011, to properly perfect the issue
on appeal concerning the amount of permanent support he was ordered to pay on September
19, 2011.
¶ 56 In A’Hearn (In re Marriage of A’Hearn, 408 Ill. App. 3d 1091 (2011)), this court agreed
with the holding of In re Marriage of Carr, 323 Ill. App. 3d 481 (2001), which continues to
be instructive. A’Hearn, 408 Ill. App. 3d at 1097. In Carr, the husband filed a motion to
reduce child support and, while this motion was pending, the wife filed a petition for attorney
fees. Carr, 323 Ill. App. 3d at 485. After the trial court ruled on the husband’s child support
2
On that same date, Erica filed another new motion instanter asking Klay to contribute to
C.C.’s uncovered medical expenses. We conclude that, since the motion raised a new matter not
previously pending before the court, that motion was more in the nature of a motion to modify
the final judgment under section 16 of the Parentage Act (750 ILCS 45/16 (West 2010)), and did
not extend the entry of final judgment on all pending matters in this case.
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motion, the wife also filed a petition for rule to show cause against the husband for failing
to pay college expenses. Id.
¶ 57 In Carr, the appellate court concluded the trial court’s order granting the husband’s
motion to reduce child support was final and appealable within 30 days of that ruling, despite
the fact the wife’s petition for attorney fees and findings of contempt were pending in the
trial court at the same time. Carr, 323 Ill. App. 3d at 485. In so reasoning, the court noted
that the wife’s petition for attorney fees had nothing to do with the merits of the original
dissolution petition, and the husband’s motion to reduce the amount of child support was
unrelated to either the wife’s petition for fees or the rule to show cause. Id.; see also
A’Hearn, 408 Ill. App. 3d at 1097.
¶ 58 We recognize, as the dissent contends, these cases involve dissolution of marriage
actions. However, the Parentage Act requires trial courts to refer to the standards in the
Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2010)).
Therefore, both decisions remain instructive to resolving similar child support issues in the
case at bar. 750 ILCS 45/14 (West 2010).
¶ 59 In this case, the timing of each motion is a bit different from Carr, but the result remains
the same. Erica’s June 29, 2011, request for attorney fees had nothing to do with the merits
of Klay’s petition to intervene and motion to vacate. Further, Klay did not request downward
deviation to make it possible for him to pay a share of Erica’s attorney fees. Instead, his
request was motivated by a desire to have the court recognize David’s ability to contribution
to C.C.’s financial support.
¶ 60 Therefore, based on this record, we conclude the issue of the amount of Klay’s permanent
child support was unrelated to whether Klay had the ability to pay a portion of Erica’s
attorney fees. Accordingly, we conclude this court does not have jurisdiction to review the
court’s denial of a request for downward deviation since Klay did not file his notice of appeal
within 30 days of September 19, 2011 when the last issue, overnight visitation, was finally
resolved by the court.
¶ 61 IV. David’s Parental Status
¶ 62 We respectfully disagree with the dissent’s decision to offer an advisory opinion
regarding the diminished status of David’s parental rights for several reasons. First, in this
appeal, Klay argues his child support obligation should have been cut in half because the trial
court maintained David’s legal status as C.C.’s father. Consequently, Klay does not assert
that the trial court’s combined, and arguably inconsistent, rulings on his petition to intervene,
petition to establish his parental rights, and his separate section 2-1401 motion to vacate
somehow operated to indirectly extinguish David’s parental rights.
¶ 63 Second, this court has held that, absent a timely challenge, a VAP father’s parental rights,
such as David’s parental rights, do not become void, as the dissent suggests, simply because
the child is genetically linked to another man. See In re Parentage of G.E.M., 382 Ill. App.
3d 1102, 1113 (2008); see also Department of Public Aid v. Smith, 212 Ill. 2d 389, 406
(2004) (“[I]t would be unreasonable to allow a man *** to undo his voluntary
acknowledgment years later on the basis of DNA *** results, when his paternity was based
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not on a mere marital presumption that he was the child’s father but on [the] conscious
decision to accept the legal responsibility of being the child’s father.”). Third, the Parentage
Act clearly provides that, once a VAP father is adjudicated by a court to be a legal parent of
a child, there is no longer a justiciable issue and the adjudicated father is the only man with
a statutory right to file a petition to determine the nonexistence of the parent-child
relationship. 750 ILCS 45/7(b-5) (West 2010).
¶ 64 In addition, an adjudicated parent, like David, has a fundamental liberty interest in
maintaining custody of his or her child. Santosky v. Kramer, 455 U.S. 745, 753 (1982). For
example, in adoptions and paternity actions, a court order creates constitutionally protected
parental rights without requiring any showing of shared DNA between parent and child. See
In re M.M., 156 Ill. 2d 53 (1993); G.E.M., 382 Ill. App. 3d 1102; Smith, 212 Ill. 2d 389. The
dissent’s analysis does not address these constitutional considerations. Finally, the dissent
attaches no significance to the trial court’s finding that David’s paternity order, entered in
2008, was not based on fraud and should not be vacated at Klay’s request.
¶ 65 However, we share the dissent’s concerns that a trial court may not be able to
simultaneously recognize two different men as the legal fathers of a child born out of
wedlock, in the same parentage action.3 The various issues tackled in this trial court, and
perhaps others in the future, will continue to arise until the legislature modifies existing
statutory presumptions of paternity. 750 ILCS 45/5 (West 2010). Perhaps, the lawmakers
could require a VAP father to show proof of a genetic connection to the child before an
unchallenged VAP creates a conclusive and nonrebuttable statutory presumption for a court
to apply in a parentage action.
¶ 66 Like the dissent, absent legislative action, we look forward to receiving our supreme
court’s guidance with respect to whether one child, born to an unwed mother, may
simultaneously have two additional parents who share equal court-ordered parental rights
and obligations with the biological mother based on the existing statutes. In fact, there are
many other compelling issues that come to mind, which the parties have not asked us to
consider, and our supreme court has not yet had an opportunity to address.
¶ 67 For example, we question whether the current statutory scheme allows the trial court to
compel a biological father, such as Klay, to pay any amount of court-ordered support when
the child has a legal, conclusively presumed and fully adjudicated, VAP father. Klay has not
asked us to consider this issue because he is willing to pay child support in a reduced
amount.
¶ 68 Similarly, we have concerns regarding whether the trial court correctly found that Klay
had standing to intervene in this paternity action initiated by Erica. Yet, David and Erica have
not filed a cross-appeal asking us to review this issue. Nor have they alleged the court’s
orders allowing Klay parental privileges and obligations are void. Moreover, David and Erica
3
We distinguish the decision of our supreme court issued in J.S.A. v. M.H., 224 Ill. 2d 182
(2007), since the child in that case was born to a birth mother who was legally married to
someone other than the biological father of her child at the time of both conception and birth and
involved different presumptions.
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have not contested whether the trial court conducted an adequate best interests hearing, in
this case, before usurping David and Erica’s decision prohibiting Klay from having
temporary or regular visitation with their daughter. See J.S.A. v. M.H., 224 Ill. 2d 182, 211-
12 (2007).
¶ 69 Rather than addressing the merits of any one of these intriguing issues, we follow the
same approach exercised by our supreme court in In re Parentage of J.W., 2013 IL 114817.
In that case, our supreme court considered similar circumstances but did not take it upon
itself, in the absence of a request by one of the parties, to declare one of the paternity orders
void when two separate orders named two different fathers for the same child. Regarding two
orders naming both a VAP father and a DNA father, the supreme court stated: “[F]or
purposes of this appeal, we make no determination with regard to either party’s standing, or
as to [VAP father’s] continued legal status as a parent.” J.W., 2013 IL 114817, ¶ 36 n.3.
Therefore, the same degree of judicial restraint causes us to abstain from making any
determination with respect to either David’s or Klay’s legal status as C.C.’s parent in the case
at bar.
¶ 70 In summary, this court unanimously concludes we are without jurisdiction to directly
review the merits of the court’s ruling on Klay’s section 2-1401 motion and unanimously
agrees to set aside the order requiring Klay to pay a percentage of Erica’s attorney fees, on
grounds related to Klay’s income alone. In addition, the majority concludes we do not have
jurisdiction to review the method the trial court used to calculate the amount of Klay’s child
support. The dissent concludes this court should have jurisdiction to address the issue of
downward deviation in Klay’s child support and further addresses the status of David’s
parental rights based on this record.
¶ 71 CONCLUSION
¶ 72 For the foregoing reasons, the judgment of the circuit court of Fulton County with respect
to attorney fees is reversed.
¶ 73 Reversed.
¶ 74 JUSTICE SCHMIDT, dissenting in part and concurring in part.
¶ 75 I dissent from that portion of the majority’s opinion, beginning at paragraph 51, in which
the majority concludes that we do not have jurisdiction to address Klay’s request for a
downward deviation from the statutory guidelines for child support. Ironically, it is only in
paragraph 51 that the majority mentions the supreme court’s decision in Gutman, and then
only for the boilerplate proposition for the de novo standard of review of the legal issue of
jurisdiction.
¶ 76 The majority determines that, notwithstanding a pending petition for attorney fees (filed
on June 29, 2011), the trial court’s August 5, 2011, ruling denying Klay’s request to reduce
child support was rendered final on September 19, 2011; therefore, Klay’s failure to file a
notice of appeal within 30 days of September 19, 2011, deprived this court of jurisdiction to
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address the issue.
¶ 77 The majority relies upon A’Hearn to support its jurisdiction holding. Even assuming for
the sake of argument that A’Hearn was correctly decided (it was not), A’Hearn dealt with
postdissolution proceedings. This is not a postdissolution proceeding. No one here got
divorced.
¶ 78 So, what we have here is a judicial expansion of an incorrect rule, set down in a wrongly
decided case, ignoring supreme court rules and decades of law interpreting them.
¶ 79 Furthermore, there are numerous methods and rules which allow one to take an
interlocutory appeal from all sorts of otherwise interlocutory orders. It would serve no
purpose to list them all here. Suffice it to say, in light of the pending petition for attorney
fees, the motion setting child support and denying Klay’s request for a downward reduction
from the statutory factors was not a final order. Had he filed a notice of appeal within 30 days
and absent a Rule 304(a) finding (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)), we would have
lacked jurisdiction to entertain that appeal. A reading of In re Marriage of Gutman, 232 Ill.
2d 145 (2008), makes that clear.
¶ 80 What is also troubling is that appellate courts, in applying “Kentucky windage” to
established law and relatively clear principles of civil procedure, use it to deny appellate
review of significant, if not life-changing, issues. The majority’s analysis on jurisdiction
above is, in essence: the request for attorney fees was unrelated to the child support issues.
Therefore, unrelated issues should be treated as separate actions for purposes of the
appealability of orders. If the majority here is correct, then Rule 304(a) has no purpose. Ill.
S. Ct. R. 304(a) (eff. Feb. 26, 2010).
¶ 81 Out in the real world, far, far away from the rarified air of the appellate court, real
lawyers are struggling to figure out how to best protect the rights of their respective clients.
With all due respect, appellate decisions such as this make that job difficult, if not
impossible. Additionally, it will make the extremely expensive proposition of litigation even
more expensive. Now, when there is a ruling on any portion of a multiple claim case in the
trial court, the lawyers will have to figure out whether an appellate court will decide if the
issue ruled upon was sufficiently similar to the remaining issues so as not to require an
interlocutory appeal, or whether two of three judges might find the issue sufficiently
dissimilar from the other issues, requiring a notice of appeal to be filed within 30 days. One
can expect reasonable lawyers to avoid malpractice exposure by filing notices of appeal on
every order in the trial court for fear that failure to do so could find the issue unreviewable
at a later time due to lack of jurisdiction.
¶ 82 A reading of the A’Hearn decision should lead to the inescapable conclusion that it was
wrongly decided. It also clearly illustrates the mindset of the A’Hearn court. For example:
“We note briefly that, although there are interlocutory appeals that provide for appellate
review in postdissolution proceedings, these mechanisms would not have given us
jurisdiction in this case.” (Emphasis added.) In re Marriage of A’Hearn, 408 Ill. App. 3d
1091, 1098 (2011). The A’Hearn court recognized that Rule 304(b)(6) provided for
immediate appealability of orders modifying custody. However, A’Hearn involved a denial
of a request for modification of custody. Id. The court noted that Rule 306(a)(5) (Ill. S. Ct.
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R. 306(a)(5) (eff. Feb. 16, 2011)) allowed a party to request an interlocutory appeal of orders
affecting the care and custody of unemancipated minors. However, the A’Hearn appellant
failed to seek leave within the required time. A’Hearn, 408 Ill. App. 3d at 1098.
¶ 83 In the A’Hearn court’s “brief” discussion of the bases for interlocutory appeal, it fails to
mention Rule 304(a).
¶ 84 I submit that long-standing rules on appeals from final orders and interlocutory appeals
have, for the most part, been well understood by both the trial bar and the bench. In essence,
A’Hearn acknowledges all of the supreme court rules that provide for appeals in domestic
cases and decides: (a) appellant never requested a Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb.
26, 2010)) finding in the trial court; (b) the appellant did not seek leave to appeal under Rule
306(a)(5) (Ill. S. Ct. R. 306(a)(5) (eff. Feb. 16, 2011)); and (c) the order was not appealable
under Rule 304(b)(6) (Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010)). A’Hearn, 408 Ill. App.
3d at 1098. The A’Hearn court acknowledged that supreme court rules would not give the
appellate court jurisdiction; it fashioned a new rule that would. That was bad enough. What
the majority does here is much worse.
¶ 85 In A’Hearn, the court addressed issues on appeal prematurely since there was no basis
for appellate jurisdiction. Nobody had their rights denied. Some time was wasted and some
needless expense incurred. However, in this case, the majority denies a litigant the right of
appellate review.
¶ 86 Our job as appellate judges is to help clarify the law. Sometimes our job is to decide
issues of first impression. Our job is not to obfuscate the law and write new rules in the face
of long-standing supreme court rules on the issue. No attorney, who has read and understood
Rules 303 (Ill. S. Ct. R. 303 (eff. May 30, 2008)) and 304 (Ill. S. Ct. R. 304 (eff. Feb. 26,
2010)), would have reasonably thought that he had to file a notice of appeal of the August
5, 2011, order while there remained pending an unresolved, previously filed petition for
attorney fees. I respectfully submit that the majority further obfuscates the issue in paragraph
59, which states:
“In this case, the timing of each motion is a bit different from Carr, but the result
remains the same. Erica’s June 29, 2011, request for attorney fees had nothing to do with
the merits of Klay’s petition to intervene and motion to vacate. Further, Klay did not
request downward deviation to make it possible for him to pay a share of Erica’s attorney
fees.” Supra ¶ 59.
I can find no rational relationship between that statement and the issues before us. I will
concede that no reasonable person could conclude that Klay requested the downward
deviation to make it possible for him to pay a share of Erica’s attorney fees. We are talking
about whether we have jurisdiction to address issues raised in an order dated August 5, 2011.
There were multiple issues pending in the trial court below, including child support,
parentage, custody, and attorney fees. Of course, it is not unusual at all to have multiple
issues, related and otherwise, pending in a single action in the trial court. Ergo, Supreme
Court Rule 304. The only relevant issue regarding the timing of Klay’s notice of appeal was
that he filed it within 30 days of the resolution of the last claim in this case, the claim for
attorney fees.
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¶ 87 While the August 5, 2011, order denying Klay’s request for a downward departure of
child support payments settled that controversy, given the pending petition for attorney fees,
it did not terminate the litigation between the parties or resolve all claims. As such, it was
not an appealable order absent Rule 304(a) language. See In re Marriage of Gutman, 232 Ill.
2d at 151-52; Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). We have jurisdiction to address Klay’s
child support arguments.
¶ 88 II. Klay’s Motion for Downward Departure
From Statutory Guidelines
¶ 89 Klay argues the trial court erred in denying his motion for a downward departure from
statutory guidelines based on the minor child having three legal parents. For the reasons
stated below, I would find that the minor child cannot have three legal parents. Thus, the trial
court did not err in refusing to grant a downward departure on that basis. I would affirm the
trial court’s order setting Klay’s child support obligations and vacate any orders requiring
David to pay child support.
¶ 90 The majority, perhaps not unreasonably, suggests that I am raising issues, even deciding
issues, not raised by the parties. I disagree. Klay has raised the issue of whether his child
support payments are to be reduced in light of the existence of another legal father, David.
He has raised some legal arguments that I find unavailing. However, while a party can waive
an issue, that party cannot require that an issue raised be decided under the wrong law. That
is, one can waive an issue; one cannot waive the law.
¶ 91 On a personal level, I like the majority’s result. I feel that I am as qualified as anyone to
observe that biology has nothing to do with a parent’s love for a child. However, the
uncertainty of a parent’s rights, whether those parental rights arose by virtue of a voluntary
acknowledgment, adoption or otherwise, leads to unnecessary mental anguish on the part of
those parents, as well as the children. I personally detest the result, which I believe the
statutes and supreme court cases interpreting them mandate. As discussed below, courts have
seemed to sidestep the issues discussed below and I cannot understand why. A definitive
ruling by the supreme court could lead to ensuring that the law protects the rights of someone
who has raised a child as if the child were his or her own from birth. I believe that the
concept of three legal parents is untenable and would create a myriad of problems not only
for the parents, but for the child as the child grows up and attends school. I believe the job
of the courts is to help people; these parents and children can best be helped by a resolution
of these issues sooner rather than later.
¶ 92 The record before us contains two orders identifying three different people as the legal
parents of C.C. The first order entered November 6, 2008, identifies David as the legal father
and Erica as the legal mother. The second order, entered February 14, 2011, identifies Klay
as C.C.’s biological father and sets a visitation between Klay and C.C. This order established
a parent-child relationship, which also made Klay a legal parent of C.C.
¶ 93 Through termination of a biological parent’s parental rights and adoption by a
nonbiological parent or parents, a child can have two women as mothers or two men as
fathers. See In re Petition of K.M., 274 Ill. App. 3d 189 (1995); Connor v. Velinda C., 356
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Ill. App. 3d 315 (2005). However, whether a child can have a legal mother and two legal
fathers appears to be a case of first impression in Illinois.4 I acknowledge that even the
United States Supreme Court has been called upon and struggled with scenarios involving
numerous parents of the same sex who seek legal rights and control over a child. “California
law, like nature itself, makes no provision for dual fatherhood.” Michael H. v. Gerald D., 491
U.S. 110, 118 (1989).
¶ 94 For the reasons set forth below, I believe that Illinois law does not authorize a child to
have two legal fathers and one legal mother. Therefore, one of the orders must be void. We
have a duty to identify void orders in the record before us. Gilchrist v. Human Rights
Comm’n, 312 Ill. App. 3d 597, 601 (2000) (“Because this court has a duty to vacate and
expunge void orders from court records, we may sua sponte declare an order void.”).
¶ 95 To explain my conclusion, I first briefly summarize the provisions of the Illinois
Parentage Act of 1984 (Parentage Act). The Parentage Act provides that a father-child
relationship may be established in a number of ways: by presumption (750 ILCS 45/5(a)
(West 2010)), by consent (750 ILCS 45/6 (West 2010)), or by judicial determination (750
ILCS 45/7 (West 2010)). Section 7(a) of the Parentage Act provides:
“An action to determine the existence of the father and child relationship, whether
or not such a relationship is already presumed under Section 5 of this Act [(750 ILCS
45/5)], may be brought by *** a man presumed or alleging himself to be the father of the
child or expected child.” 750 ILCS 45/7(a) (West 2010).
¶ 96 The Parentage Act allows a putative father to establish his parentage of a child up until
the child attains the age of 20. 750 ILCS 45/8(a)(1) (West 2010). The Parentage Act also
provides an action to declare the nonexistence of a parent-and-child relationship within two
years after the petitioner learns of “relevant facts.” 750 ILCS 45/7(b) (West 2010).
¶ 97 Section 5 establishes paternity by presumption in four circumstances: (1) when a man and
the child’s mother are or have been married and the child is born or conceived during the
marriage; (2) when the man and the child’s natural mother have married each other after the
child’s birth and the man is named, with his written consent, as the child’s father on the
child’s birth certificate; (3) when the man and the child’s natural mother have signed a
voluntary acknowledgment of paternity; or (4) when the man and the natural mother have
signed an acknowledgment of parentage or, if the “natural father is someone other than one
presumed to be the father under this Section, an acknowledgment of parentage and denial of
paternity in accordance with Section 12 of the Vital Records Act.” 750 ILCS 45/5 (West
2010).
¶ 98 The Parentage Act gives a putative father the right to request DNA testing to determine
if he is the biological father of the child and mandates the circuit court order the parties to
submit to testing upon the man’s request. 750 ILCS 45/11(a) (West 2010) (“As soon as
practicable, the court *** may, and upon request of a party shall, order or direct the mother,
4
The factual scenario here has existed in other cases, but no Illinois court has found itself
in a position where it felt obligated to address the issue. See, e.g., In re Parentage of J.W., 2013
IL 114817, ¶ 36 n.3.
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child and alleged father to submit to deoxyribonucleic acid (DNA) tests to determine
inherited characteristics.”). The Parentage Act allows for the presumptions of section 5 listed
above to be rebutted if the results of the genetic testing show that the legally presumed father
is not the child’s biological father. 750 ILCS 45/11(f)(4) (West 2010).
¶ 99 Proof of paternity will trigger financial obligations owed by the legal father. However,
merely establishing paternity does not automatically result in the acquisition of parental
rights. As our supreme court recently noted, “a judgment of paternity does not automatically
entitle a biological father to visitation. Rather, the ‘privilege’ of visitation is subordinate to
the best interests of the child.” In re Parentage of J.W., 2013 IL 114817, ¶ 39 (citing J.S.A.
v. M.H., 224 Ill. 2d 182, 211 (2007)); see also In re Parentage of John M., 212 Ill. 2d 253,
265 (2004) (“Thus, 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.”). Section 14(a)(1) of the Parentage Act provides that any decision regarding
custody and visitation of the child “shall determine in accordance with the relevant factors
set forth in the Illinois Marriage and Dissolution of Marriage Act and any other applicable
law of Illinois, to guide the court in a finding in the best interests of the child.” 750 ILCS
45/14(a)(1) (West 2010).
¶ 100 To determine whether this statutory scheme allows C.C. to have a legal mother and two
legal fathers, I turn to familiar rules of construction. The fundamental rule of statutory
construction is to determine and carry out the legislature’s intent. In re G.M., 2012 IL App
(2d) 110370. “The best indication of the legislature’s intent is the language of the statute,
given its plain and ordinary meaning.” Id. ¶ 11. A thorough reading of the Parentage Act and
the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/101
et seq. (West 2010)) supports the conclusion that the Illinois legislature only contemplated
a child having one legal father and one legal mother, again, barring termination of parental
rights and adoption.
¶ 101 Each mention of a child-father relationship is written in the singular. For example, the
relevant portion of section 2 of the Parentage Act provides “the mother and child relationship
and the father and child relationship.” (Emphasis added.) 750 ILCS 45/2 (West 2010).
Additionally, section 18 of the Parentage Act requires “either or both parents” to pay for
costs associated with a guardian ad litem. (Emphasis added.) 750 ILCS 45/18 (West 2010).
When discussing a man’s paternity, the Parentage Act routinely uses the phrase “he and the
child’s natural mother.” 750 ILCS 45/5(a)(1), (a)(2), (a)(3), (a)(4) (West 2010). Allowing a
child to have a natural mother and two legal fathers is inconsistent with this statutory
language.
¶ 102 In In re Marriage of Adams, 297 Ill. App. 3d 156, 157-58 (1998), the mother told her
husband that she conceived two children by artificial insemination. The woman, however,
had two extramarital affairs and the children were actually conceived during those affairs.
Id. at 157. The husband filed for dissolution after learning about the affairs and asked for his
support obligations to be terminated. Id. At the same time, the mother filed paternity actions
against the biological fathers, Timothy Arnold, and Paul Robert Ziegler. Id. The latter settled
with the mother. Id. The trial court terminated the husband’s obligations, declared Timothy
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Arnold the child’s father, and ordered Arnold to pay support. Id. On appeal, the Fourth
District stated, “[The mother] filed an action to prove the existence of a parent and child
relationship. Implicit in every petition to prove the existence of that relationship under
section 8(a)(1) is proof of the non-existence of the relationship to everyone else.” (Emphases
in original.) Id. at 160. This principle was echoed in In re G.M., 2012 IL App (2d) 110370,
when the court commented, “Obviously, a declaration that one person is a child’s father
necessarily implies that all others are not the child’s father.” Id. ¶ 12. I agree.
¶ 103 I would hold that the order establishing the parent-child relationship between Klay and
the minor child, as a matter of law, terminated David’s presumptive fatherhood. While the
trial court possessed the authority at the time to enter the November 6, 2008, order
identifying David as C.C.’s legal father, its subsequent order establishing a parent-child
relationship between Klay and C.C. effectively vacated the November 6 order. I acknowledge
that David has not asked that his status as legal father be terminated. My proposed holding
would not, ipso facto, foreclose David from involvement or taking an active role in the
child’s life. See, e.g., In re Marriage of Roberts, 271 Ill. App. 3d 972 (1995); Koelle v.
Zwiren, 284 Ill. App. 3d 778 (1996). In fact, at this stage, we cannot even rule out possible
custody for David. These issues can be resolved at a best interest hearing.
¶ 104 Merely establishing a parent-child relationship does not equate to parental rights such as
visitation or custody. In re Parentage of J.W., 2013 IL 114817, ¶ 39. After determination of
a parent-child relationship but before determining custody and visitation, the parties should
proceed to a best interest hearing. Id. I note that the trial court’s order of February 14, 2011,
purports to set a date for such a hearing. However, it sets the hearing for “February 4, 2011,”
which is obviously 10 days before the trial court entered the order.
¶ 105 A review of the record below suggests that no best interest hearing took place. The record
indicates a hearing on the petition for fees took place on March 7, 2012. The trial court
entered an agreed order regarding visitation on April 21, 2011, following court-ordered
mediation and hearings that took place on May 18, 2011, and October 17, 2011, during
which the parties discussed Klay’s support commitments and attorney fees. I would remand
this matter to the trial court with the direction to hold a best interest hearing.
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