Robinson v. Reif

Illinois Official Reports

Appellate Court

Robinson v. Reif, 2014 IL App (4th) 140244

Appellate Court PAUL W. ROBINSON and LINETTE R. ROBINSON, Plaintiffs-

Caption Appellees, v. ANDREW REIF, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-14-0244

Filed November 24, 2014

Held In proceedings under the grandparent visitation statute arising from

(Note: This syllabus the death of the mother of two children and the severe injury of their

constitutes no part of the father in an automobile accident and the father’s 18-month

opinion of the court but rehabilitation while the children lived with plaintiffs, the children’s

has been prepared by the maternal grandparents, the trial court’s decision granting plaintiffs

Reporter of Decisions visitation was affirmed, since plaintiffs raised the children during their

for the convenience of father’s rehabilitation, and even though the subsequent contentious

the reader.) court battle to retain custody soured the relationship between plaintiffs

and the children’s father and his new wife and confused the children,

the evidence supported the trial court’s finding that plaintiffs

demonstrated that the children’s mental, physical, or emotional health

was harmed by their father’s actions and decisions as to visitation

times and that any harm that might result from regular visitation with

plaintiffs was overcome by the harm that would result from

terminating the bond that was created while the children lived with

plaintiffs.

Decision Under Appeal from the Circuit Court of Macon County, No. 11-F-427; the

Review Hon. James R. Coryell, Judge, presiding.

Judgment Affirmed.

Counsel on Andrew D. Bourey, of Bourey Law Offices, of Decatur, for appellant.

Appeal

Michael K. Goldberg and Elizabeth E. Stubbins, both of Goldberg

Law Group, LLC, of Chicago, for appellees.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with

opinion.

Presiding Justice Appleton and Justice Turner concurred in the

judgment and opinion.

OPINION

¶1 In March 2010, a car accident killed 22-year-old Casey Robinson-Reif and left her

husband, defendant, Andrew Reif, severely injured and in need of prolonged hospitalization

and rehabilitation. For 18 months thereafter, the couple’s minor children, G.R. (born October

10, 2007) and E.R. (born August 5, 2009), lived with their maternal grandparents, Paul W.

Robinson and Linette R. Robinson (collectively, plaintiffs). In August 2011, defendant–now

recovered and remarried–successfully regained custody of his children after a contentious

court battle. Defendant and his new wife moved with the children to New Mexico, cutting off

all contact with plaintiffs.

¶2 In September 2011, plaintiffs filed a verified petition for permanent and temporary

grandparent visitation pursuant to section 607(a-5) of the Illinois Marriage and Dissolution of

Marriage Act (Act) (commonly known as the grandparent visitation statute) (750 ILCS

5/607(a-5) (West 2010)). In March 2014, following a November 2013 hearing, the trial court

granted plaintiffs’ petition and set a visitation schedule.

¶3 Defendant appeals, arguing that (1) plaintiffs lacked standing under section 607(a-5)(1) of

the Act (750 ILCS 5/607(a-5)(1) (West 2010)) because defendant did not unreasonably deny

visitation and (2) the trial court’s judgment was against the manifest weight of the evidence

because plaintiffs failed to rebut the statutory presumption that defendant’s actions and

decisions regarding grandparent visitation were not harmful to the children’s mental, physical,

or emotional health. We disagree and affirm.

¶4 I. BACKGROUND

¶5 The following facts were gleaned from the parties’ pleadings and other supporting

documents filed with the trial court, as well as the evidence presented at the November 2013

hearing on plaintiffs’ petition.

¶6 A. Events Preceding Plaintiffs’ Petition

¶7 In December 2006, defendant and Casey married in Decatur. In February 2007, Casey

moved to El Paso, Texas, to live with defendant, who was stationed at the Army base at Fort

Bliss. G.R. and E.R. were both born on the base. In March 2010, the family decided that Casey

and the two children would move back to Illinois. During the drive to Illinois, the family’s

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car–driven by defendant–was involved in a rollover accident, which resulted in Casey’s death

and severe injuries to defendant. The children, who were uninjured, lived the next 18 months

with plaintiffs in Decatur while defendant recovered. After defendant recovered and remarried,

plaintiffs sought to keep custody of the children. The court battle for custody, which defendant

ultimately won, caused seemingly irreparable damage to plaintiffs’ relationship with

defendant. Once defendant settled in New Mexico with his new wife and the children, he

ignored plaintiffs’ repeated attempts to contact him, eventually changing his phone number.

¶8 B. Plaintiffs’ September 2011 Petition

¶9 In September 2011, plaintiffs filed their petition for grandparent visitation pursuant to

section 607(a-5) of the Act, seeking a permanent visitation order. The petition alleged, in

pertinent part, that (1) defendant cut off contact with plaintiffs and unreasonably denied

plaintiffs visitation with the children; (2) the children developed significant mental and

emotional bonds with plaintiffs; (3) defendant’s termination of plaintiffs’ relationship with the

children was not in good faith; and (4) the termination of plaintiffs’ relationship with the

children had caused, and will continue to cause, the children to suffer mentally and

emotionally. Plaintiffs’ petition set forth 25 specific factual allegations to illustrate the bonds

that had formed between plaintiffs and the children. (For example, plaintiffs alleged that “[t]he

minor children enjoyed riding their bikes and planting flowers with [plaintiffs,]” and “[E.R.]

sometimes called Grandmother, ‘Mommy.’ ”)

¶ 10 While plaintiffs’ petition was pending, the trial court allowed (1) weekly phone calls

between plaintiffs and the children, (2) three personal visits in the Texas/New Mexico area,

and (3) one personal visit in Decatur, which required plaintiffs to make two round-trip flights

to El Paso to retrieve and drop off the children.

¶ 11 C. The November 2013 Hearing on Plaintiffs’ Petition

¶ 12 In November 2013, after more than two years of continuances, the trial court held a hearing

on plaintiffs’ petition, at which the parties presented the following evidence.

¶ 13 1. Plaintiffs’ Evidence

¶ 14 a. Linette’s Testimony

¶ 15 Linette (born August 1969) testified that she and Paul (born June 1971) had been married

for 20 years. Linette is employed as a clinical pharmacy technician and Paul is a trucking

supervisor for Archer Daniels Midland Company. Prior to Casey’s death, plaintiffs were very

close with defendant and the children. The parties would visit each other in El Paso and

Decatur and make regular phone calls on holidays and birthdays.

¶ 16 At 4:45 a.m. on March 12, 2010, police called plaintiffs’ home to inform them that

defendant, Casey, and the children had been in a rollover accident on Interstate 40 near

Tucumcari, New Mexico. After plaintiffs pleaded for more information, the officer revealed

that Casey had died. The children were fine, but defendant had been airlifted in critical

condition to Amarillo, Texas, and the local authorities would be placing the children in foster

care for the time being. Within a half hour, plaintiffs were on the road making the 15-hour

drive from Decatur to Amarillo to retrieve the children. Plaintiffs spent three days in Texas

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before returning to Decatur. During that time, they visited defendant in the hospital and

purchased baby formula for E.R., who had until then been nursing from Casey.

¶ 17 Defendant suffered serious brain injuries in the accident, which required him to be placed

in a medically induced coma for two weeks. For the next several months, while defendant was

hospitalized in Amarillo and Chicago, G.R. would regularly ask plaintiffs where his mother

was. Plaintiffs would explain that she had gone to heaven and that they missed her too.

Plaintiffs traveled with the children to the hospital in Amarillo to visit defendant for Easter,

then to the hospital in Chicago several times to visit defendant while he was in rehabilitation.

Following his hospitalization in Chicago, defendant spent May and June living in plaintiffs’

home. At the end of June, the Army recalled defendant to Fort Bliss. According to Linette,

defendant wanted the children to remain in Decatur with plaintiffs because plaintiffs “were

doing a great job with [the children] and [defendant] felt comfortable to leave them.”

¶ 18 Plaintiffs assumed complete care and parenting responsibilities for the children during the

18 months following the car accident. This included feeding, toilet training, arranging day

care, throwing birthday parties, traveling to visit extended family, and taking the children to

activities such as pottery classes, festivals, children’s museums, and the zoo.

¶ 19 When defendant was living with plaintiffs during his recovery, he contributed little to basic

parenting duties, such as changing diapers or feeding the children. Linette stated that defendant

would “come and go all hours of the day and night,” and “he didn’t interact with [the children]

a whole lot.” In late 2010 and the early months of 2011, after defendant had returned to Fort

Bliss, Linette noticed a change in defendant’s mood. Specifically, defendant became

“threatening” to plaintiffs and showed signs of depression, hallucinations, forgetfulness, and

suicidal thoughts. (Linette gleaned much of this information from defendant’s Facebook page.)

In late January 2011, defendant told plaintiffs that he was in a relationship and he intended to

take the children with him to Texas. Linette told defendant, who was living in the Fort Bliss

barracks at the time, that she was not comfortable giving the children to him.

¶ 20 In February 2011, defendant married his second wife, Tiffany. Shortly thereafter, plaintiffs

filed for an emergency order of protection against defendant, which the trial court granted.

However, plaintiffs soon dropped the emergency order of protection and instead filed a

renewed petition for temporary guardianship, which the court also granted. (The record before

us does not contain any pleadings or other court documents from the proceedings on the

emergency order of protection or the petitions for temporary guardianship.)

¶ 21 After the trial court granted plaintiffs’ renewed petition for temporary guardianship in

March 2011, the litigation over custody of the children continued, with plaintiffs taking the

position that defendant was not competent to care for the children. In August 2011, after

defendant took a court-ordered mental evaluation, the trial court returned the children to

defendant’s custody. Linette testified that the children were upset and crying when they

learned that they would be returned to defendant. After defendant took custody of the children,

all his communication with plaintiffs ceased.

¶ 22 At the four visits during the pendency of plaintiffs’ petition for grandparent visitation, the

children were very excited to see plaintiffs. During the Decatur visit in May 2012, defendant’s

parents (who also lived in Decatur) came to plaintiffs’ home to visit with the children. The

children slept in their old bedrooms, which plaintiffs had preserved for them. The children

were upset when it came time to return to El Paso.

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¶ 23 At the conclusion of Linette’s testimony, the trial court admitted several pages of photos

showing the children interacting with plaintiffs. (The photos, which appear to have been taken

between G.R.’s infancy and the May 2012 visit, generally show the children appearing happy

and content.)

¶ 24 b. Mary McMillan’s Testimony

¶ 25 Mary McMillan, who had been best friends with Casey, visited plaintiffs’ home almost

daily after Casey’s death. McMillan testified that during the 18 months following Casey’s

death, “[plaintiffs] were, for all intents and purposes, the parents.” The children were very

close with plaintiffs, and they would run to the window whenever they saw Linette or Paul

arrive home. According to McMillan, when the children visited plaintiffs’ home in May 2012

after being away since August 2011, “they loved being there. It was as if they never left.”

McMillan never heard plaintiffs talk poorly about defendant in front of the children.

¶ 26 c. Shirley Cooper’s Testimony

¶ 27 Shirley Cooper, Linette’s mother, was present for the August 2011 transfer of the children

from plaintiffs’ custody to defendant’s custody. Both children were crying and screaming as

defendant and Tiffany strapped them into their car seats.

¶ 28 d. Defendant’s Testimony

¶ 29 Defendant, testifying as an adverse witness, stated that he was 26 years old and lived in Las

Cruces, New Mexico. Defendant acknowledged that plaintiffs and the children love each other.

However, when asked if he would allow plaintiffs to visit the children if they dismissed their

petition for grandparent visitation, defendant stated, “we’re in court right now, so I can’t

answer that question. I have no idea.”

¶ 30 On cross-examination by his own counsel, defendant testified that in August 2011, after he

regained custody of the children, he sent an e-mail to plaintiffs informing them that he had

changed his phone number and was discontinuing all contact between his family and plaintiffs

“for the time being.”

¶ 31 Defendant also noted that when he and Tiffany retrieved the children after the December

2011 visit, G.R. was wearing a diaper, despite being completely toilet trained. Following that

visitation, G.R. began having nightmares and wetting the bed. G.R. would also become scared

and have nightmares after the weekly phone calls with plaintiffs. Before the children visited

plaintiffs, defendant would attempt to “hype up” the children and get them excited for the visit.

However, G.R. would react by becoming sad and having emotional outbursts.

¶ 32 e. Paul’s Testimony

¶ 33 Paul testified that prior to the car accident, he and Linette would video-chat with Casey and

the children several times each week.

¶ 34 Paul further stated that defendant sent his August 2011 e-mail, which informed plaintiffs

that he was cutting off visitation, to an unused e-mail address belonging to plaintiffs’ adult son,

Pauley. Paul never received defendant’s August 2011 e-mail.

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¶ 35 f. Dr. Judy Osgood’s Testimony

¶ 36 Dr. Judy Osgood, a licensed clinical psychologist specializing in children and families,

testified that she believed it was important for plaintiffs to have visitation with the children and

that a lack of visitation would harm the emotional well-being of the children. Osgood based

this opinion on (1) her review of the records of the legal proceedings; (2) pictures and videos of

plaintiffs interacting with the children throughout their lives; (3) entries that defendant posted

on Facebook in 2011; (4) clinical interviews with Linette, Paul, and Pauley; and (5) the

evidence depositions of defendant’s expert witnesses (discussed in further detail, below).

¶ 37 Osgood opined that plaintiffs are high-functioning, stable, and responsible people. Neither

presented any risk factors–such as substance abuse, criminal history, domestic violence, or

mental disorders–to cause Osgood concern regarding visitation. Osgood acknowledged that

she had never directly spoken with or observed the children. However, the consensus in the

psychological community is that young children develop attachments to their caregivers, who

provide consistency, security, trust, and comfort. Based upon her review of photos and videos,

Osgood concluded that the children understood plaintiffs as their primary caregivers and

attachment figures during the 18 months following the car accident, which was a “critical

development stage” for both children. If the children were cut off from plaintiffs, it would

cause a major disruption in their lives. Further, at least for G.R., who remembers Casey, the

permanent loss of visitation with plaintiffs would constitute a second major disruption in his

life after the death of his mother.

¶ 38 Osgood further testified that children who have healthy relationships with grandparents

and other extended family are much more capable of having healthy relationships with others

as they grow older. On the other hand, according to Osgood, children who experience multiple

losses of caregivers–such as children in and out of foster care–tend to develop reactive

attachment disorder, which causes them difficulty in establishing and maintaining new healthy

relationships.

¶ 39 On cross-examination, Osgood acknowledged that it would have been beneficial for her to

meet the children to determine whether an attachment between plaintiffs and the children

existed. Ideally, a practitioner would be able to observe the children interacting with both the

grandparents and the parents for an extended period of time before forming such an opinion.

Osgood clarified that, assuming plaintiffs’ representations of the facts were accurate, she could

form an expert opinion as to visitation.

¶ 40 At the conclusion of Osgood’s testimony, the trial court admitted without objection a

12-page “visitation evaluation” prepared by Osgood (dated October 30, 2012), which was

largely consistent with her testimony. Osgood noted in her report that, according to plaintiffs,

defendant was not in contact with his own parents (the children’s paternal grandparents).

¶ 41 2. Defendant’s Evidence

¶ 42 a. Defendant’s Testimony

¶ 43 Defendant testified that plaintiffs disparaged him during the 2011 court proceedings. (We

again note that the record contains no pleadings, transcripts, or other court documents from

those proceedings.) In June 2011, on the morning after the trial court ordered plaintiffs to

return the children to defendant, plaintiffs and defendant sat down for a meeting to discuss the

transition. Although the court had ordered a 60-day transition period, plaintiffs told defendant

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that they did not intend to return the children until the evening of the 59th day. Linette further

told defendant that he “had not suffered enough” and that he remarried too soon. Linette told

Tiffany that “she would never be a mommy,” and “she would never be able to take care of the

children” because she was too young and she did not give birth to them. The animosity

between the parties prevented any agreement as to the terms of the transition.

¶ 44 According to defendant, visits and phone calls with plaintiffs were harmful to the children.

G.R.’s nightmares and bed-wetting always coincided with visits and phone calls with

plaintiffs. Shortly after the December 2011 visit, defendant placed G.R. in counseling. G.R.’s

nightmares and bed-wetting became more intense after the May 2011 visit in Decatur. Soon,

G.R. was seeing a counselor at least once per week. On one occasion, plaintiffs failed to abide

by defendant’s instructions that E.R. wear a certain brand of diapers and use a certain type of

medication for diaper rash. When plaintiffs returned E.R. to defendant, she had a diaper rash

that required a visit to the doctor. During the most recent visit in New Mexico, however, the

children were allowed to sleep in defendant’s home each night after spending the day with

plaintiffs. Defendant noticed a “substantial decrease” in G.R.’s nightmares and bed-wetting

after that visit.

¶ 45 b. Tiffany’s Testimony

¶ 46 Tiffany, who became the adoptive mother of the children in February 2013, testified that

plaintiffs returned G.R. after the December 2011 visit wearing a diaper, which he had

completely soiled. At the time, G.R. had already been toilet trained and was used to wearing

regular underwear. Following the May 2012 visit, as plaintiffs and the children were walking

toward defendant and Tiffany in the El Paso airport, G.R. wet himself. For several days

following that visit, G.R. was withdrawn and E.R. was “more sensitive to sounds.”

¶ 47 c. Dr. Robert DelCampo’s Testimony

¶ 48 Dr. Robert DelCampo–a marriage and family therapist licensed in New Mexico–testified

in December 2012 by means of evidence deposition, the transcript of which the trial court

admitted at the November 2013 hearing.

¶ 49 DelCampo testified that between April 2012 and December 2012, he met with defendant,

Tiffany, and the children together on four or five separate occasions. During those meetings,

DelCampo would observe defendant and Tiffany interact with the children. DelCampo

characterized defendant and Tiffany’s parenting as “very positive.”

¶ 50 DelCampo admitted that most of his knowledge about the children’s reactions and attitudes

toward plaintiffs was based upon information provided to him by defendant and Tiffany. In

summer 2012, defendant informed DelCampo that the children “were having night terrors and

not wanting to go with [plaintiffs].” According to what DelCampo learned from defendant, the

children’s problems–specifically, night terrors and bed-wetting–would occur for

approximately one week before and after visits with plaintiffs. In October 2012, while

DelCampo was playing a game with G.R., G.R. “in no uncertain terms expressed a reticence to

want to interact with [plaintiffs].”

¶ 51 Based upon his knowledge of the situation, DelCampo opined that “it is traumatic at this

point in time for the kids to be consorting with [plaintiffs].” Specifically, given the age of the

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children, it is “grossly inappropriate” for them to stay with plaintiffs for a week at a time with

no ability to interact with defendant or Tiffany.

¶ 52 Contrary to Osgood’s testimony, DelCampo stated that it is “highly improbable” for

children between six months and four years of age–roughly the ages of E.R. and G.R. when

they lived with plaintiffs–to develop attachments to primary caregivers. Accordingly,

DelCampo opined that it would not be harmful for the children to be deprived of visitation with

plaintiffs. (We note that during the evidence deposition, DelCampo expressed his

understanding that the children had lived with plaintiffs for less than one year.)

¶ 53 On cross-examination, DelCampo acknowledged that (1) he did not observe the children

interact with plaintiffs and (2) doing so might have affected his opinion.

¶ 54 d. David Linares’s Testimony

¶ 55 David Linares, a licensed professional clinical counselor from New Mexico, worked as a

therapist for children and families at Fort Bliss. Linares testified in January 2013 by means of

evidence deposition, the transcript of which the trial court admitted at the November 2013

hearing. At the time of the deposition, Linares had been meeting with G.R. on a weekly basis

since July 2012.

¶ 56 Tiffany originally brought G.R. in for counseling because he was suffering from night

terrors and bed-wetting, which Tiffany reported would occur shortly after G.R. spoke with

plaintiffs. (Defendant attended G.R.’s first therapy session, but none thereafter.) Linares

diagnosed G.R. with nightmare disorder. G.R.’s nightmares usually involved plaintiffs “trying

to chase him or get him.” At a session in late July 2012, G.R. reported that in one of his dreams,

the Flash–a comic book hero–”saved him from the Robinsons.” Linares noted that G.R. calls

plaintiffs “the Robinsons” instead of grandma and grandpa, or some similar title. When

Linares asked G.R. why he does this, G.R. stated “that he doesn’t like them and he just wants to

call them ‘the Robinsons.’ ” G.R. also reported to Linares that plaintiffs tell him that (1) his

mother is dead and (2) plaintiffs–not Tiffany and defendant–are his real mother and father.

G.R. told Linares that plaintiffs often tell him to “shut up” and “be quiet,” which hurts his

feelings and makes him angry.

¶ 57 As a treatment goal for G.R., Linares wanted G.R. to express his feelings and explore his

“inner world.” However, Linares stated that this goal “has been a little bit complicated by his

mother, Tiffany, not wanting to reveal to him that she is the stepmother.” Linares elaborated, as

follows: “[G.R.] has this question that directly crosses his feelings regarding ‘why are

[plaintiffs] in my life?’ And the most that he knows is that they’re the grandparents. But he

relates grandparents to the Reifs [(defendant’s parents)]. So that creates confusion.” Early in

G.R.’s therapy, Linares “noticed that Tiffany would talk about [plaintiffs] kind of negatively in

that she would sigh when talking about them. She didn’t smile or have any kind of positive

affect toward them.” Because children can assimilate those negative attitudes for themselves,

Linares encouraged Tiffany and defendant to present a positive attitude when speaking with

the children about plaintiffs. Tiffany and defendant reported to Linares they have taken his

advice, and it is helping.

¶ 58 Although G.R. has made improvements in his therapy, he still regresses after having

contact with plaintiffs. Linares also noted, however, that until approximately one or two

months before the January 2013 evidence deposition, G.R. was under the impression that

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plaintiffs were trying to gain full custody over him and E.R. G.R. did not understand that the

instant court case involved only visitation rights.

¶ 59 In September 2012, Linares decided to make phone contact with plaintiffs, which he

explained, as follows:

“I typically don’t do mediation, but I thought maybe if I could talk to the

grandparents, I could refer them to a mediator with [defendant and Tiffany]. And I

spoke to [plaintiffs] on the phone, and they seemed to be very pleasant people. They

wanted to meet me. I was agreeable to that. They came down for a visit.

However, between the time that I spoke to them and the time they came down for a

visit, [defendant] forbade me from being able to meet with them. He had felt that I had

fallen into their trap, so to speak, and I have been taken in by them. And he informed

me that after going through such a long court process and spending so much money,

that he would want to get this resolved. He did not want to mediate anything.”

¶ 60 Contrary to DelCampo’s testimony, Linares testified that children the ages of G.R. and

E.R. do form attachments to caregivers. Research indicates that attachments take between two

months and two years to form. Although Linares opined that G.R. formed an attachment to

plaintiffs, Linares concluded that whatever attachment existed was either very poor or

altogether broken because G.R. clearly dislikes plaintiffs and does not want to see them.

Because contact with plaintiffs “hurts” G.R., Linares recommended that no visitation between

plaintiffs and G.R. occur for “at least a period of a few years.”

¶ 61 Linares acknowledged that although he has had no direct interaction with E.R., his

recommendation would likely be the same for her.

¶ 62 On cross-examination, Linares admitted that if G.R. formed an attachment to plaintiffs,

defendant’s and Tiffany’s negative comments about plaintiffs–if any–could have a “moderate

to a very heavy effect on that bond *** because [G.R.] is so young that he can still be

indoctrinated for certain beliefs.” In any event, regardless of whether G.R.’s attitude toward

plaintiffs is justified, or the product of defendant and Tiffany’s indoctrination, Linares was

certain that G.R. viewed his relationship with plaintiffs in a very negative light.

¶ 63 3. The Trial Court’s Ruling

¶ 64 In February 2014, after reviewing the transcripts of the evidence depositions and hearing

the parties’ arguments, the trial court granted plaintiffs’ petition for grandparent visitation. The

court found–based upon “common sense” and Osgood’s testimony (which the court found

credible)–that the children had formed an attachment to plaintiffs during the 18 months that

they lived together. Accordingly, plaintiffs had rebutted the presumption that defendant’s

decision to cut off visitation was not harmful to the children.

¶ 65 In March 2014, the trial court entered a written order, which provided that plaintiffs shall

have the following visitation rights as to the children: (1) a weekly, unsupervised phone call;

(2) a seven-day visit every June in Decatur; and (3) weekend visits in New Mexico once every

April, October, and December.

¶ 66 This appeal followed.

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¶ 67 II. ANALYSIS

¶ 68 Defendant argues that (1) plaintiffs lacked standing under section 607(a-5)(1) of the Act

because defendant did not unreasonably deny visitation; and (2) the trial court’s judgment was

against the manifest weight of the evidence because plaintiffs failed to rebut the statutory

presumption that defendant’s actions and decisions regarding grandparent visitation were not

harmful to the children’s mental, physical, or emotional health. We address defendant’s

arguments in turn.

¶ 69 A. Standing Under Section 607(a-5)(1) of the Act

¶ 70 Defendant argues that plaintiffs lack standing under section 607(a-5)(1) of the Act, which

provides, in pertinent part, as follows:

“Except as otherwise provided in this subsection (a-5), any grandparent,

great-grandparent, or sibling may file a petition for visitation rights to a minor child if

there is an unreasonable denial of visitation by a parent and at least one of the following

conditions exists:

***

(a-5) the child’s other parent is deceased or has been missing for at least 3

months.” 750 ILCS 5/607(a-5)(1) (West 2010).

Although defendant concedes that the children’s other parent (Casey) is deceased, he contends

that plaintiffs lack standing because no “unreasonable denial of visitation” existed. Plaintiffs

argue that defendant forfeited this standing argument by failing to raise it in a timely manner in

the trial court. We agree with plaintiffs.

¶ 71 “Under Illinois law, lack of standing is an affirmative defense, which is the defendant’s

burden to plead and prove.” Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252, 930

N.E.2d 895, 916 (2010). “[A] lack of standing will be forfeited if not raised in a timely manner

in the trial court [citations].” Id. at 252-53, 930 N.E.2d at 916.

¶ 72 In this case, defendant waited until closing arguments in February 2014–2½ years after

plaintiffs filed their petition for grandparent visitation–before arguing that visitation was not

unreasonably denied. Even then, defendant did not couch his argument in terms of “standing”

(he never uttered the word). Instead, defendant contended that an unreasonable denial of

visitation was a “part of the test” for obtaining grandparent visitation, which plaintiffs had

failed to prove. By the time of closing arguments in February 2014, the parties had (1) filed

multiple pretrial motions, (2) hired expert witnesses, (3) conducted two evidence depositions,

and (4) engaged in a full evidentiary hearing. Even if defendant’s closing argument could be

construed as raising an objection to plaintiffs’ standing, that objection was clearly untimely.

Accordingly, defendant has forfeited his objection to plaintiffs’ standing under section

607(a-5)(1) of the Act. (We note that defendant declined to file a reply brief responding to

plaintiffs’ forfeiture argument.)

¶ 73 We also note that even if defendant had preserved his objection under section 607(a-5)(1)

of the Act, the record contains sufficient evidence to support a finding that defendant

unreasonably denied visitation. Although both parties could have approached the situation

more diplomatically, defendant terminated all visitation after plaintiffs had spent the past 18

months taking on full parenting responsibilities for defendant’s children, even after defendant

had returned to health. Given Casey’s death, as well as the intimate relationship that must have

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existed between the children and plaintiffs for 18 months, the court could have concluded that

it was unreasonable for defendant to completely cut ties with plaintiffs immediately upon

obtaining custody of the children.

¶ 74 B. Visitation Under Section 607(a-5)(4) of the Act

¶ 75 Defendant next argues that the trial court’s judgment was against the manifest weight of

the evidence. Specifically, defendant contends that plaintiffs failed to rebut the statutory

presumption that defendant’s actions and decisions regarding grandparent visitation were not

harmful to the children’s mental, physical, or emotional health. That presumption is contained

in section 607(a-5)(3) of the Act, which provides as follows:

“In making a determination under this subsection (a-5), there is a rebuttable

presumption that a fit parent’s actions and decisions regarding grandparent,

great-grandparent, or sibling visitation are not harmful to the child’s mental, physical,

or emotional health. The burden is on the party filing a petition under this Section to

prove that the parent’s actions and decisions regarding visitation times are harmful to

the child’s mental, physical, or emotional health.” 750 ILCS 5/607(a-5)(3) (West

2010).

¶ 76 This statutory presumption reflects the United States Supreme Court’s decision in Troxel v.

Granville, 530 U.S. 57, 68 (2000), which recognized “a presumption that fit parents act in the

best interests of their children.” That presumption derives from the due process clause of the

fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), which

“protects the fundamental right of parents to make decisions concerning the care, custody, and

control of their children.” Troxel, 530 U.S. at 66; see Flynn v. Henkel, 227 Ill. 2d 176, 181, 880

N.E.2d 166, 169 (2007).

¶ 77 In Troxel, the Supreme Court struck down a Washington state statute that allowed any

person to seek court-ordered visitation with a child if visitation would “serve the best interest

of the child.” (Internal quotation marks omitted.) Troxel, 530 U.S. at 67. The Supreme Court

held that the Washington statute contravened the presumption that a fit parent makes decisions

in the best interest of the child because it placed the best interest determination solely in the

hands of a judge, without affording any special weight to the parent’s determination. Id. In so

holding, the Troxel Court further noted that the grandparents in that case never alleged that the

fit parent altogether denied visitation. Id. at 71. The Court cited visitation statutes from other

states requiring a showing that the parent had denied visitation (or unreasonably denied

visitation) to the concerned third party. Id. at 70.

¶ 78 In the wake of Troxel, the Illinois Supreme Court struck down section 607(b)(1) of the

Act–this state’s former grandparent visitation statute–because, like the Washington statute at

issue in Troxel, it “expose[d] the decision of a fit parent to the unfettered value judgment of a

judge and the intrusive micromanaging of the state.” Wickham v. Byrne, 199 Ill. 2d 309, 320,

769 N.E.2d 1, 8 (2002). In response to Wickham, the General Assembly passed Public Act

93-911 (eff. Jan. 1, 2005), which amended section 607 of the Act to reflect the constitutional

requirements set forth in Troxel and Wickham. Specifically, Public Act 93-911 added (1) the

statutory presumption that a fit parent’s decisions regarding visitation are not harmful to the

child (750 ILCS 5/607(a-5)(3) (West 2010)), (2) the requirement that the concerned third party

be unreasonably denied visitation before filing a petition (750 ILCS 5/670(a-5)(1) (West

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2010)), and (3) the following list of factors that the trial court “shall consider” in determining

whether to grant visitation:

“(A) the preference of the child if the child is determined to be of sufficient

maturity to express a preference;

(B) the mental and physical health of the child;

(C) the mental and physical health of the grandparent, great-grandparent, or sibling;

(D) the length and quality of the prior relationship between the child and the

grandparent, great-grandparent, or sibling;

(E) the good faith of the party in filing the petition;

(F) the good faith of the person denying visitation;

(G) the quantity of the visitation time requested and the potential adverse impact

that visitation would have on the child’s customary activities;

(H) whether the child resided with the petitioner for at least 6 consecutive months

with or without the current custodian present;

(I) whether the petitioner had frequent or regular contact or visitation with the child

for at least 12 consecutive months;

(J) any other fact that establishes that the loss of the relationship between the

petitioner and the child is likely to harm the child’s mental, physical, or emotional

health; and

(K) whether the grandparent, great-grandparent, or sibling was a primary caretaker

of the child for a period of not less than 6 consecutive months.” 750 ILCS 5/607(a-5)(4)

(West 2010).

With the pertinent provisions and the constitutional underpinnings of the grandparent

visitation statute in mind, we now turn to the trial court’s judgment in this case.

¶ 79 1. Standard of Review

¶ 80 The supreme court has explained the standard of review applicable to the trial court’s

judgment under section 607(a-5) of the Act, as follows:

“Section 607(a-5)(3) [of the Act] places the burden on the party filing the visitation

petition to prove that the parent’s actions and decisions regarding visitation times are

harmful to the child’s mental, physical, or emotional health. A trial court’s

determination that a fit parent’s decision regarding whether grandparent visitation is or

is not harmful to the child’s mental, physical, or emotional health will not be disturbed

on review unless it is contrary to the manifest weight of the evidence.” Flynn, 227 Ill.

2d at 181, 880 N.E.2d at 169.

“A finding is against the manifest weight of the evidence only if the opposite conclusion is

clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence

presented.” Best v. Best, 223 Ill. 2d 342, 350, 860 N.E.2d 240, 245 (2006).

¶ 81 2. The Evidence Presented and the Statutory Factors

¶ 82 Initially, we note that plaintiffs’ evidence and defendant’s evidence painted two drastically

different pictures of the children’s relationship with plaintiffs. If plaintiffs’ witnesses are to be

believed, the children greatly enjoy being with their loving, nurturing grandparents. On the

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other hand, if defendant’s witnesses are to be believed, plaintiffs are so nasty to the children

that G.R. has nightmares just from talking to them on the phone. The trial court heard live

testimony from defendant, Tiffany, both plaintiffs, and two witnesses who observed the

children interact with plaintiffs. The court read the evidence-deposition transcripts of both of

defendant’s expert witnesses, and it heard the live testimony of plaintiffs’ expert witness.

When presented with a record such as this, we are mindful that “[b]ecause the trial court has

the best opportunity to observe the demeanor and conduct of the parties and witnesses, it is in

the best position to determine the credibility and weight to be given to the witnesses’

testimony.” In re Stephen K., 373 Ill. App. 3d 7, 20, 867 N.E.2d 81, 94 (2007).

¶ 83 Defendant relies upon the supreme court’s decision in Flynn, which reversed the trial and

appellate courts, concluding that the grandmother in that case failed to rebut the presumption

that the fit mother’s denial of visitation was not harmful to the child. Specifically, defendant

cites the following passage from Flynn:

“Neither denial of an opportunity for grandparent visitation, *** nor a child ‘never

knowing a grandparent who loved him and who did not undermine the child’s

relationship with his mother,’ *** is ‘harm’ that will rebut the presumption stated in

section 607(a-5)(3) [of the Act] that a fit parent’s denial of a grandparent’s visitation is

not harmful to the child’s mental, physical, or emotional health.” Flynn, 227 Ill. 2d at

184, 880 N.E.2d at 171.

¶ 84 In Flynn, however, “the trial court did not make any specific findings as to how [the

grandmother] had overcome the statutory presumption that [the mother’s] decisions regarding

grandparent visitation were not harmful to [the child’s] mental, physical, or emotional health.”

Id. at 180, 880 N.E.2d at 168. This is a critical distinction between Flynn and the facts of the

case before us. In Flynn, the trial court made the following general statement at the close of

evidence and arguments:

“ ‘Based on the testimony presented[,] the Court finds that the petitioner has met her

burden. The harm in this case is not something that you can put in the sense of a direct

emotional harm. It’s a direct denial of an opportunity that every grandparent according

to this statute is entitled to.’ ” Id. at 179, 880 N.E.2d at 168.

The Second District appellate court affirmed the trial court’s judgment in Flynn, holding as

follows:

“The harm that [the child] would suffer if there were no visitation can be inferred

from the evidence. As the trial court stated, it ‘is not something that you can put in the

sense of a direct emotional harm.’ However, [the grandmother’s] love for [the child] is

manifest in the record. *** If [the grandmother] were denied visitation, [the child]

would be harmed by never knowing a grandparent who loved him and who did not

undermine the child’s relationship with his mother.” Flynn v. Henkel, 369 Ill. App. 3d

328, 335, 859 N.E.2d 1063, 1068 (2006), rev’d, 227 Ill. 2d 176, 880 N.E.2d 166

(2007).

¶ 85 Rejecting this reasoning, the supreme court in Flynn noted that the grandmother “did not

present any evidence to show that denial of visitation with her would result in harm to [the

child’s] mental, physical, or emotional health. The only evidence pertaining to harm [the child]

would experience from the denial of visitation with his grandmother came from [the mother],

who was asked, ‘Do you believe it would be harmful for [the child] not to see [the

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grandmother] and visit with her?’ and she answered, ‘No.’ ” Flynn, 227 Ill. 2d at 184, 880

N.E.2d at 170.

¶ 86 In this case, however, plaintiffs presented expert testimony from Osgood, who explained

the psychological community’s consensus that young children develop attachments to primary

caregivers. Because E.R. and G.R. spent 18 months with plaintiffs during a “critical

development stage,” Osgood opined that the children formed an attachment to plaintiffs.

Osgood based this opinion, in part, on her clinical interviews with plaintiffs and her review of

photos and videos of the children interacting with plaintiffs. Given the existence of this

caregiver attachment, Osgood concluded that depriving the children of all visitation with

plaintiffs would cause a major disruption in their lives that would be damaging emotionally.

¶ 87 Osgood further described how terminating the children’s relationship with plaintiffs could

lead to reactive attachment disorder, which could cause them difficulty in establishing and

maintaining new healthy relationships in the future. The trial court, noting that Osgood’s

testimony was credible, specifically found that (1) the children had formed a bond with

plaintiffs and (2) it would be harmful to the children if their relationship with plaintiffs ceased

to exist.

¶ 88 Defendant argues that the trial court should have based its ruling on the testimony of his

experts, who actually met the children. However, although plaintiff’s expert, Osgood, may

have been better informed if she had met the children, we believe (and the trial court could

have concluded) that defendant’s experts may have been better informed if they had met

plaintiffs. Indeed, all of the three experts acknowledged to some degree that their opinions

were based on limited information because they did not have an opportunity to observe all the

relevant parties interacting together. This case presents a classic example of a “battle of the

experts.” The experts, all qualified in their respective fields, gave differing statements of fact

and opinion regarding whether the children would be harmed if they were deprived of

visitation with plaintiffs. As the supreme court has warned, “a ‘battle of the experts’ is a

situation in which reviewing courts are especially loathe to second-guess the findings made by

the trier of fact.” Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 216,

835 N.E.2d 801, 870 (2005).

¶ 89 In his brief to this court, defendant further asserts–as if it were an undisputed fact–that

plaintiffs caused G.R. to suffer from nightmares and bed-wetting. However, DelCampo and

Linares both admitted that most of their knowledge about G.R.’s reactions to plaintiffs was

based upon the reports of defendant and Tiffany. In other words, neither DelCampo nor

Linares had personal knowledge that G.R.’s nightmares and bed-wetting corresponded in time

with visits or phone calls from plaintiffs. Yet DelCampo and Linares based their ultimate

conclusions, in part, on the assumption that defendant and Tiffany were accurately reporting

the timing and severity of G.R.’s nighttime problems. At the hearing, the trial court was able to

judge the credibility of defendant and Tiffany’s claims regarding G.R.’s nightmares and

bed-wetting. Although the court did not address whether it found defendant or Tiffany

credible, our standard of review counsels against our blindly accepting defendant and

Tiffany’s assertions as true, especially when those assertions may be inconsistent with the trial

court’s ultimate decision.

¶ 90 Assuming G.R.’s nighttime problems did actually correspond in time with visits and phone

calls from plaintiffs, the trial court could have reasonably concluded that plaintiffs were not the

primary cause of those problems. By all accounts, the children were happy and healthy during

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the 18 months they lived with plaintiffs. It was not until defendant regained custody of the

children and visits with plaintiffs became contentious that G.R. began suffering from

nightmares and bed-wetting. Osgood stated that “messages by [defendant and Tiffany]

probably have a lot to do with [G.R.] having nightmares.” Linares acknowledged the

possibility that indoctrination by defendant and Tiffany contributed to G.R.’s negative feelings

toward plaintiffs. Notably, Linares described his only interaction with plaintiffs (his

September 2012 phone call to Linette) as follows:

“It was a pleasant conversation. The grandmother informed me that the things that

[G.R.] was saying just weren’t true, that things might be misconstrued or thoughts put

into his head by [defendant and Tiffany]. She informed me she was working a second

job to pay for her lawyer. And I thought that was very, very sweet. She was very

pleasant. We had a good conversation overall. And I informed them how the dynamic,

how this might be hurting [G.R.]”

¶ 91 In this case, the trial court heard evidence that defendant and Tiffany said and did things

which caused the children to view plaintiffs in a negative light. When defendant and Tiffany

took Linares’s advice that they present a positive attitude of plaintiffs to the children, things

changed for the better. This suggests that defendant and Tiffany’s actions and decisions–not

just those of the plaintiffs–were partially to blame for the mental and emotional harm to the

children.

¶ 92 The trial court had an opportunity to observe both parents and grandparents in person,

study their demeanor, and listen to their testimony. The court was in a better position than

Linares or DelCampo (or this court, for that matter) to judge whether defendant’s actions and

decisions regarding visitation were harmful to the children. Implicit in the court’s judgment is

the finding that whatever harm might come to the children from regular visitation with

plaintiffs is overcome by the harm that would result from terminating the unique

grandparent-grandchild relationship at issue in this case.

¶ 93 The evidence presented, although conflicting in many important respects, clearly

established that plaintiffs raised the children, as if their own, for 18 months following Casey’s

tragic death and defendant’s hospitalization. Plaintiffs’ reluctance to give up the children,

coupled with the ensuing court battle to retain custody, understandably soured defendant’s

relationship with plaintiffs. Perhaps unintentionally, the negativity between defendant and

plaintiffs was impressed upon the children, who were undoubtedly overwhelmed and confused

as to the true makeup of their family. The bad blood between plaintiffs and defendant affected

the children’s mental and emotional health. The parties blame each other for this. Although a

father’s actions and decisions concerning the care, custody, and control of his children are

presumptively valid, defendant’s actions and decisions in this case were animated by factors

other than the children’s best interests. Although both parties might have good reasons for

resenting each other, section 607(a-5) of the Act focuses on the harm to the children.

¶ 94 The trial court in this case found that plaintiffs met their burden of demonstrating that

defendant’s “actions and decisions regarding visitation times are harmful to the child[ren]’s

mental, physical, or emotional health” (750 ILCS 5/607(a-5)(3) (West 2010)). The court found

that the children had formed an attachment to plaintiffs, which, if broken, would cause the

children emotional harm. Based upon our thorough review of the record, we conclude that the

court’s judgment was not against the manifest weight of the evidence.

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¶ 95 III. CONCLUSION

¶ 96 For the reasons stated, we affirm the trial court’s judgment.

¶ 97 Affirmed.

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