{
  "id": 2500784,
  "name": "In re PETITION OF EDDIE PADIN (Eddie Padin, Petitioner-Appellant, v. Veronica Padin, a Minor, et al., Respondents-Appellees)",
  "name_abbreviation": "Padin v. Padin",
  "decision_date": "1989-01-26",
  "docket_number": "No. 3-89-0123",
  "first_page": "554",
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  "last_updated": "2023-07-14T21:36:46.192510+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re PETITION OF EDDIE PADIN (Eddie Padin, Petitioner-Appellant, v. Veronica Padin, a Minor, et al., Respondents-Appellees)."
    ],
    "opinions": [
      {
        "text": "JUSTICE STOUDER\ndelivered the opinion of the court:\nThe petitioner-appellant, Eddie Padin, (Eddie) filed a petition to establish the existence of a parent-child relationship between himself and Veronica Padin, a minor. In addition, Eddie requested reasonable visitation rights. Following a hearing, the trial court granted the respondent-appellee\u2019s, Nilsa Maldonado\u2019s, motion to dismiss. Eddie brought the instant appeal.\nThe record shows on February 21, 1978, Veronica Padin (Veronica) was born in Chicago, Illinois. According to her birth certificate, Veronica is the daughter of Eddie Padin and Nilsa Hernandez. Hernandez later married Jesus Maldonado. In September, 1984, Nilsa Maldonado and her husband filed a petition to adopt Veronica in the circuit court of Cook County. In the petition for adoption, Maldonado twice indicated that Eddie was Veronica\u2019s father. Following a hearing, the court denied the adoption petition. Sometime thereafter the Maldonados and Veronica moved to Knox County.\nOn September 21, 1988, Eddie petitioned the circuit court of Knox County seeking to establish paternity and visitation rights with Veronica. Maldonado filed a motion to dismiss the action claiming, pursuant to section 8(a)(2) of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2)) (the Parentage Act), that the statute of limitations provision therein barred Eddie\u2019s action. At the hearing on the motion to dismiss, Eddie orally moved for leave to amend his petition to omit the request to be declared Veronica\u2019s father and requested the court to determine only the visitation rights. The court denied the motion and dismissed the entire action, finding the action was barred by the statute of limitations provision of the Parentage Act. The court also denied Eddie\u2019s oral motion for leave to amend his petition. The issue on appeal is whether the trial court erred in granting Maldonado\u2019s motion to dismiss and denying Eddie\u2019s oral motion for leave to amend his petition.\nSection 8(a)(2) provides \u201c[a]n action brought on behalf of any person other than the child shall be barred if brought later than 2 years after the birth of the child. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the non-existence of the parent and child relationship.\u201d Ill. Rev. Stat. 1987, ch. 40, par. 2508(a)(2).\nMaldonado asserts that section 8(a)(2) applies to this case because Eddie instituted this action pursuant to both the Parentage Act and the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) (IMDMA). Section 9(a) of the Parentage Act (Ill. Rev. Stat. 1987, ch. 40, par. 2509(a)) provides: \u201cIn any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue.\u201d Maldonado asserts that this section also applies in the instant case because both parentage and visitation are at issue. Maldonado asserts that Eddie is required to have filed an action to determine paternity within a reasonable time after the enactment of the Parentage Act in 1984. Maldonado argues that because a reasonable time for bringing an action cannot be greater than the two-year statute of limitations period, Eddie is barred from bringing this action, for over two years have elapsed from the date of the Parentage Act\u2019s enactment. According to Maldonado, therefore, the section 8(a)(2) statute of limitations in the Parentage Act applies and the court properly dismissed the case. We disagree.\nEddie contends that because parentage is not at issue, the statute of limitations contained in the Parentage Act does not apply. Eddie is the acknowledged father of Veronica. Maldonado, in the earlier adoption proceeding, did not dispute that Eddie was Veronica\u2019s father. In addition, Eddie is the named father on Veronica\u2019s birth certificate.\nMatters of custody and parentage are separate legal issues. (In re Marriage of Ingram (1988), 176 Ill. App. 3d 413, 531 N.E.2d 97.) In Ingram, the court determined that under the facts of that case a parent-child relationship was presumed. The court noted that the child\u2019s birth certificate contained the alleged father\u2019s name. Likewise, in the instant case, Veronica\u2019s birth certificate, which Maldonado signed, lists Eddie as Veronica\u2019s father. We also note Veronica\u2019s last name is \u201cPadin\u201d and not Maldonado or Hernandez and that has never been disputed. Therefore, we do not believe parentage is an issue in this proceeding. Accordingly, the statute of limitations found in section 8(a)(2) of the Parentage Act does not apply in the instant case.\nMaldonado also asserts that the court denied Eddie\u2019s petition due to an alleged violation of a local practice rule. Maldonado claims the court denied Eddie\u2019s oral motion for leave to amend his petition because he violated a local practice rule regarding proper notice. The record, however, does not support Maldonado\u2019s contention. The record indicates that the court denied the oral motion for leave to amend the petition due to a statute of limitations problem. Accordingly, we conclude Maldonado\u2019s contention that the trial court denied Eddie\u2019s oral motion for leave to amend his petition due' to an alleged violation of a local practice rule is unsupported.\nThe second issue concerns the scope of the custody provisions set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 602). Eddie contends that section 601(b)(l)(ii) of the IMDMA (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(l)(ii)) permits a petition for a parent seeking visitation rights. Eddie also asserts that section 602 of the IMDMA, which pertains to custody, has also been interpreted to apply to visitation rights. We agree.\nThe court addressed this issue in In re Custody of Myer (1981), 100 Ill. App. 3d 27, 426 N.E.2d 333. In Myer, the court stated that visitation is a form of custody subject to the custody rules set forth in the IMDMA. Likewise, in the instant case, Eddie\u2019s visitation rights are to be determined by applying the custody rules set forth in section 602 of the IMDMA.\nMaldonado claims that Eddie should be barred from allegedly going in and out of Veronica\u2019s life and thereby allegedly causing her emotional harm. Eddie contests this assertion and notes that he is not seeking custody; rather, he is seeking the opportunity to visit his daughter, who has been moved from Cook County to Knox County. We note that this is not an appropriate issue to be raised or decided on a motion to dismiss. What is to be determined by the trial court is what is in the best interest of Veronica. (Ill. Rev. Stat. 1987, ch. 40, par. 602.) Under these circumstances, therefore, we believe this dispute may properly be resolved by a hearing to determine what is in Veronica\u2019s best interest. A guardian ad litem should be appointed to represent Veronica in the future proceedings.\nFor these reasons the order of the circuit court of Knox County granting Maldonado\u2019s motion to dismiss and denying Eddie\u2019s oral motion for leave to amend his petition is reversed and the cause remanded for further proceedings consistent with the views set forth herein.\nReversed and remanded.\nWOMBACHER and BARRY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE STOUDER"
      }
    ],
    "attorneys": [
      "John L. Sullivan, of Chicago, for appellant.",
      "Lucas, Brown & McDonald, of Galesburg (Dawn A. Conolly, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re PETITION OF EDDIE PADIN (Eddie Padin, Petitioner-Appellant, v. Veronica Padin, a Minor, et al., Respondents-Appellees).\nThird District\nNo. 3-89-0123\nOpinion filed January 26,1989.\nJohn L. Sullivan, of Chicago, for appellant.\nLucas, Brown & McDonald, of Galesburg (Dawn A. Conolly, of counsel), for appellee."
  },
  "file_name": "0554-01",
  "first_page_order": 576,
  "last_page_order": 580
}