{ "id": 637045, "name": "CHARLES JINES, Plaintiff-Appellee, v. ANNA JURICH, Defendant-Appellant", "name_abbreviation": "Jines v. Jurich", "decision_date": "2002-12-23", "docket_number": "No. 5 \u2014 01 \u2014 0433", "first_page": "1156", "last_page": "1163", "citations": [ { "type": "official", "cite": "335 Ill. App. 3d 1156" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "754 N.E.2d 419", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "424", "parenthetical": "the trial court is in best position to evaluate the credibility of witnesses and the needs of a child" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256285 ], "year": 2001, "pin_cites": [ { "page": "259", "parenthetical": "the trial court is in best position to evaluate the credibility of witnesses and the needs of a child" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0254-01" ] }, { "cite": "748 N.E.2d 1266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "1268", "parenthetical": "Gagnon was not distinguished on the question of wedlock, but on the matter of parental involvement" } ], "opinion_index": 0 }, { "cite": "322 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126341 ], "year": 2001, "pin_cites": [ { "page": "265", "parenthetical": "Gagnon was not distinguished on the question of wedlock, but on the matter of parental involvement" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/322/0262-01" ] }, { "cite": "732 N.E.2d 11", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "13" }, { "page": "14" }, { "page": "15" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140329 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "479" }, { "page": "480" }, { "page": "480-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0476-01" ] }, { "cite": "445 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 564", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434732 ], "year": 1983, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0564-01" ] }, { "cite": "680 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "512" }, { "page": "512" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596979 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "428" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/0424-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] } ], "analysis": { "cardinality": 759, "char_count": 17834, "ocr_confidence": 0.765, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0225397310808468 }, "sha256": "5bd1b81e60793da6a1ef97deb9f832706cf0d25edc8f6b9da38711d26ae8f381", "simhash": "1:8c7ef9a3874ac68f", "word_count": 2984 }, "last_updated": "2023-07-14T21:04:10.004592+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES JINES, Plaintiff-Appellee, v. ANNA JURICH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nCharles Jines (plaintiff) sought visitation with minor children he had fathered with Anna Jurich (defendant). After a hearing, the circuit court of Franklin County entered an order awarding visitation to plaintiff. On appeal, defendant raises the following issues: (1) whether the trial court erred in placing a burden on defendant to prove that no visitation should be awarded and (2) whether the trial court\u2019s decision was against the manifest weight of the evidence. We affirm.\nFACTS\nOn September 29, 1999, plaintiff filed a petition in the circuit court of Jackson County, Illinois, to establish parentage and visitation. Subsequent to a motion to transfer venue, the case was transferred to the circuit court of Franklin County. At a hearing on December 16, 1999, the court determined that plaintiff was the father of the children, based on the parties\u2019 compliance with the Vital Records Act (410 ILCS 535/12 (West 1998)). The court then entered a temporary order awarding defendant custody and plaintiff visitation rights. On January 18, 2001, plaintiff filed a petition to establish a parent-child relationship and a petition for visitation. A hearing was held on May 9, 2001.\nAt the beginning of the hearing, the trial judge informed the parties of the burdens he was placing on them. Regarding visitation, the court stated:\n\u201cWe are going to go into this with the thought in mind that visitation will be ordered, okay. It\u2019s going to be up to your client to show me, as she would have to under [sjection 607 \u2014 I think that\u2019s the section of the divorce act, which applies here \u2014 that there is a serious endangerment to the child\u2019s mental, emotional, moral[,] or physical health that would require me to restrict [plaintiff\u2019s] visitation. In other words, going into this, he is going to get visitation, okay.\u201d\nAt the conclusion of the hearing, the court commented on the evidence regarding visitation:\n\u201cThe burden of proof was on her to show a serious endangerment to these children\u2019s moral, emotional, [and] physical health.\nShe has fallen more than woefully short of the mark; she hasn\u2019t even made out a case.\nI have got a picture of the front of your house, which I guess I am supposed to conclude from that it\u2019s not a very attractive house, I don\u2019t know. Maybe there is some clutter in there, I don\u2019t know. They have been dancing around the edge of the pen about marijuana. There has been no evidence other than this photograph. And, incidentally, since I was in [sic] the only one in this room besides the [c]ourt [Reporter and these two people \u2014 the lawyers weren\u2019t there at the last hearing \u2014 the marijuana wasn\u2019t just put in because of [plaintiff]; it was put in because of [defendant],\nI made the finding, based on the evidence, that there had been marijuana usage by both parties, okay. If you will read the order, it doesn\u2019t say \u2018[defendant].\u2019 It says no marijuana is to be used in front of the children. Now, I know one of them denied it, and the other denied it, but I am telling you I heard the evidence in the case. All right.\nSo, moving back here, I have got photographs of sores on feet. I have got testimony about a sore eye. I have got a little bit here, and a little bit there. What I don\u2019t have is[ \u2014 ]I don\u2019t have any medical evidence[;] I don\u2019t have any evidence of neglect or abuse. I don\u2019t have any psychological evidence. I don\u2019t have anything. I don\u2019t have diddly squat to show serious endangerment, unless I am just guessing that that might be the case.\u201d\nThe court entered a written order filed May 21, 2001. In the order, the court stated, \u201c[T]he [c]ourt views [the order] as an initial determination of custody, visitation, and support, pursuant to [section 14 of the Illinois Parentage Act of 1984 (750 ILCS 45/14 (West 2000))], which requires the [c]ourt to make such determination in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et[] seq. [(West 2000)]).\u201d The court then proceeded to award custody to defendant and ordered plaintiff to pay child support.\nThe order established a visitation schedule for plaintiff that included alternate weekends, summer visitation, certain weekday evenings, and holidays and special days. The order stated:\n\u201cThat the visitation schedule and privileges recited herein and awarded to [plaintiff] are found to be reasonable visitation rights in the best interests of the minor children, and no evidence has been presented which would lead the [c]ourt to conclude that such visitation would endanger seriously the children\u2019s physical, mental, moral[,] or emotional health, all as provided for in [s]ection 607 of [the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607 (West 2000))].\u201d\nDefendant appeals.\nANALYSIS\nPlaintiff did not file a brief in this matter. The record is simple and this court is able to decide the merits of the case without the aid of a responding brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).\nThe resolution of this case involves an interpretation of the provisions for determining visitation under the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/14 (West 2000)). Section 14(a)(1) establishes the requirements for a judicial determination of visitation. This section reads, in part, as follows:\n\u201cThe judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support and may contain provisions concerning the custody and guardianship of the child, visitation privileges with the child, [and] the furnishing of bond or other security for the payment of the judgment, which the court 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. In determining custody, joint custody, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act.\u201d 750 ILCS 45/ 14(a)(1) (West 2000).\nDefendant argues that the trial court improperly failed to place the burden upon plaintiff to prove that visitation was in the best interests of the child. Section 607 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/607 (West 2000)) creates a presumption in favor of visitation, in effect placing the burden on the custodial parent. This section reads as follows:\n\u201cA parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds,, after a hearing, that visitation would endanger seriously the child\u2019s physical, mental, moral[,] or emotional health.\u201d 750 ILCS 5/607(a) (West 2000).\nThe trial court\u2019s statements before the hearing indicate that it placed the burden on plaintiff. Defendant contends that in a parentage case, as opposed to a divorce, the burden should be upon the noncustodial father.\nDefendant relies upon Department of Public Aid ex rel. Gagnon Dix v. Gagnon, 288 Ill. App. 3d 424, 680 N.E.2d 509 (1997). In Gag-non, the Fourth District held that, unlike a case involving the dissolution of a marriage, the father in a parentage action bears the burden of proving that visitation is in the best interests of the child. In that case, a father sought visitation rights for a girl shortly after blood tests determined that the girl was his daughter. The court addressed the interplay between the Parentage Act and the Marriage Act. The court quoted the relevant portion of section 14(a)(1) of the Parentage Act and rejected the conclusion that this incorporated section 607(a) of the Marriage Act. The court described the endangerment standard set forth in this section as \u201can onerous one.\u201d Gagnon, 288 Ill. App. 3d at 428, 680 N.E.2d at 512, citing In re Marriage of Hanson, 112 Ill. App. 3d 564, 568, 445 N.E.2d 912, 915 (1983).\nThe court explained its rationale for not incorporating this section of the Marriage Act:\n\u201cThe reference in section 14(a)(1) of the Parentage Act to the factors set forth in the Marriage Act to determine the best interest of the child is a reference to section 602 of the Marriage Act (750 ILCS 5/602 (West 1994)), not to section 607 of the Marriage Act (750 ILCS 5/607 (West 1994)). The section 14(a)(1) reference to \u2018relevant standards\u2019 makes it clear that not every rule a court would apply to a parent in a dissolution of marriage case applies with equal force to a parent in a parentage case. (Emphasis added.) 750 ILCS 45/14(a)(l) (West 1994). There is no presumption that it is in the best interest of a child to have visitation with a biological father who has had nothing to do with the child for eight years. In fact, the parental rights of an unmarried father may be terminated where he does not seek to establish paternity or pay birth expenses or provide support. 750 ILCS 50/l(D)(n)(2) (West 1994) (definition of \u2018unfit person\u2019). It would be inconsistent to legislatively mandate visitation for a biological father whose parental rights could be terminated if a petition seeking that relief were filed.\u201d Gagnon, 288 Ill. App. 3d at 428, 680 N.E.2d at 512.\nGagnon held that the burden of proof should be on the noncustodial parent seeking visitation. The court noted that in some cases the request for visitation might be a vindictive response to a request for child support. The court then concluded that when the noncustodial parent has a genuine interest in the child, the benefit may justify the court awarding visitation based on the best interests of the child. The court proceeded to find that the trial court\u2019s award of visitation was appropriate because it was supported by the evidence.\nWe disagree with Gagnon. The Parentage Act requires the court to apply the \u201crelevant standards\u201d of the Marriage Act to determine custody. The clear import of referring to the standards that are \u201crelevant\u201d is to direct the court in a parentage case to the sections of the Marriage Act that address the issue raised by the case. If the issue in a case is visitation, then the court is to apply the portions of the Marriage Act that establish standards for visitation, and likewise for custody or joint custody.\nThe Parentage Act makes no distinction between the standards for these issues in parentage cases and those in cases where a marriage is dissolved. Indeed, under the plain language of the Parentage Act, the same standards are to apply in both instances. If section 14(a)(1) of the Parentage Act is read as a whole, it is clear that the use of the phrase \u201crelevant standards\u201d is a directive to apply the corresponding standard outlined in the Marriage Act. The directional prefix to apply the standard that is \u201crelevant\u201d is not an invitation for a court to select only the portions of the Marriage Act it wishes to apply \u2014 it is an instruction to apply the corresponding standard established by the Marriage Act.\nThe structure of section 14(a)(1) further supports our stance. Section 14(a)(1) begins by requiring the court to apply the \u201crelevant factors\u201d of the Marriage Act \u201cand any other applicable law of Illinois\u201d when determining the best interests of the child for visitation, support, and bond for security. 750 ILCS 45/14(a)(l) (West 2000). In the next sentence, the section states that the \u201crelevant standards\u201d of the Marriage Act are to be applied when determining custody, joint custody, and visitation. The structure of the first two sentences of this section reinforces the literal application of the standards of the Marriage Act for visitation in two ways. First, the distinction between \u201cfactors\u201d and \u201cstandards\u201d makes it clear that both the factors for assessing the best interests of a child and the standards of proof and presumption outlined in the Marriage Act are to be applied for visitation. Further, the contrast between the first two sentences of the section illustrates that courts are limited to the standards of the Marriage Act when determining visitation. Unlike factors where \u201cother applicable law of Illinois\u201d may also be applied, the standards a court must use are limited to those established by the Marriage Act.\nOur decision is supported by the opinion of the First District in In re Parentage of Melton, 314 Ill. App. 3d 476, 479, 732 N.E.2d 11, 13 (2000). In In re Parentage of Melton, a paternity action, a mother petitioned to remove her child from Illinois. The First District vacated a ruling by the trial court that had enjoined the mother from leaving the state. The appellate court held that the trial court lacked authority under the Parentage Act to make such an injunction.\nThe In re Parentage of Melton court addressed the interplay between the Parentage Act and the Marriage Act. The court noted that proceedings under both the Parentage Act and the Marriage Act are entirely statutory in origin and that courts have no inherent powers in parentage or divorce actions. Instead, judicial action on such matters is limited to the authority granted by the respective acts. The court noted that while the Parentage Act adopts some of the factors, standards, and guidelines of the Marriage Act, it does not broadly confer to the court the powers granted under the Marriage Act. In particular, the Parentage Act gives no power to enjoin parents from removing children from the state.\nThe In re Parentage of Melton court discussed the nature of visitation under the Parentage Act, and it criticized Gagnon for ignoring the language of the Parentage Act. The court pointed out that there was no statutory authority for the shift in the burden of proof announced in Gagnon. The court stated that it could not accept Gag-non\u2019s \u201cstrained construction of the phrase \u2018relevant standards.\u2019 \u201d In re Parentage of Melton, 314 Ill. App. 3d at 480, 732 N.E.2d at 14. Instead, as explained by In re Parentage of Melton, the Parentage Act requires courts to use the standards for visitation outlined in section 607(a) of the Marriage Act.\nIn re Parentage of Melton then addressed how the policy concerns alluded to in Gagnon did not provide a basis for altering the relevant standards for visitation. The court saw no inconsistency between the provisions for terminating the parental rights of unmarried fathers and the statutory presumption in favor of visitation. If a parent\u2019s rights are terminated, he or she no longer benefits from the presumption in favor of visitation. On the other hand, not applying the Marriage Act\u2019s presumption in favor of visitation would be in violation of legislative directive. The court stated:\n\u201cThe court in Gagnon stated policy grounds for not incorporating the Marriage Act\u2019s standards for visitation into the Parentage Act. But the arguments concerning what the legislature should have done cannot change the express language of the statute incorporating \u2018the relevant standards\u2019 of the Marriage Act for determining visitation and \u2018the relevant factors\u2019 of the Marriage Act for modifying visitation. In light of the arguments presented in Gagnonl,] the legislature might prefer to change the Parentage Act. But we must enforce the laws enacted by the legislature, not the laws the legislature ought to have enacted.\u201d In re Parentage of Melton, 314 Ill. App. 3d at 480-81, 732 N.E.2d at 15.\nSee Wenzelman v. Bennett, 322 Ill. App. 3d 262, 265, 748 N.E.2d 1266, 1268 (2001) (Gagnon was not distinguished on the question of wedlock, but on the matter of parental involvement).\nThe resolution of this issue resolves the other questions presented by defendant in this appeal. Defendant\u2019s argument that the trial court erred in determining, prior to hearing the evidence, that plaintiff was entitled to visitation is based on the trial court\u2019s comments at the beginning of the hearing that the endangerment standard of the Marriage Act applied and that defendant had the burden of overcoming a presumption of visitation. As our opinion makes clear, these comments were appropriate.\nDefendant also contends that the award of visitation was against the manifest weight of the evidence. Defendant contends that plaintiff discussed legal issues with the children, using them as tools in the litigation, cussed and yeUed in an incident, and discussed inappropriate topics with the children. At the conclusion of the hearing, the corut noted that the litigation was acrimonious and that it was obvious that both parties had difficulty working with each other. The corut pointed out that defendant had contested plaintiffs parentage of the children despite there being signed birth certificates. The court also stated that it found some of the testimony presented on behalf of defendant to lack credence.\nDefendant claims that plaintiff abused drugs, pointing specifically to a photograph of plaintiff with a baggie and plaintiff having taken the children to a Bob Dylan concert. The court did not let the answer to this question go adrift, because the court found that, although both parties denied culpability, both were admonished to refrain from substance abuse. A review of the record supports the trial court\u2019s conclusion that defendant fell short of proving that visitation was not warranted. See In re Marriage of Dafoe, 324 Ill. App. 3d 254, 259, 754 N.E.2d 419, 424 (2001) (the trial court is in best position to evaluate the credibility of witnesses and the needs of a child).\nCONCLUSION\nAccordingly, the order of the circuit court is hereby affirmed.\nAffirmed.\nKUEHN and CHAPMAN, JJ., concur.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "John D. Drew and Bryan A. Drew, both of Drew & Drew, P.C., of Benton, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "CHARLES JINES, Plaintiff-Appellee, v. ANNA JURICH, Defendant-Appellant.\nFifth District\nNo. 5 \u2014 01 \u2014 0433\nOpinion filed December 23, 2002.\nJohn D. Drew and Bryan A. Drew, both of Drew & Drew, P.C., of Benton, for appellant.\nNo brief filed for appellee." }, "file_name": "1156-01", "first_page_order": 1174, "last_page_order": 1181 }