Illinois Official Reports

Appellate Court

In re Parentage of D.S., 2021 IL App (1st) 192257

Appellate Court 

Caption

In re PARENTAGE OF D.S., a Minor (Colton S., PetitionerAppellant, v. Aura C.-K., Respondent-Appellee).

District & No. First District, Second Division 

No. 1-19-2257

Filed April 27, 2021

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 2018-D-8002; the 

Hon. Edward A. Arce, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Lou Karnezis, of Karnezis Law Group LLC, of Park Ridge, for 

appellant.

No brief filed for appellee.

Panel JUSTICE COBBS delivered the judgment of the court, with opinion.

Justices Lavin and Pucinski concurred in the judgment and the 

opinion.
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OPINION

¶ 1 Petitioner-Appellant, Colton S., filed a petition seeking a declaration of parentage and 

allocation of parental responsibilities for D.S., the daughter of respondent-appellee, Aura C.-

K. Respondent moved to strike the petition for parentage pursuant to section 622 of the Illinois 

Parentage Act of 2015 (Parentage Act) (750 ILCS 46/622 (West 2018)), which prohibits the 

allocation of parental responsibilities to men who father through sexual assault or abuse or 

otherwise nonconsensual sexual penetration. The court granted respondent’s motion and 

dismissed petitioner’s petition with prejudice. Petitioner now appeals, arguing that dismissal 

was improper because the court failed to address the effect of consent under section 622(b). 

For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Respondent was born on April 16, 2001. She has known petitioner since December 2016 

and, at some point, had a sexual relationship with him. On December 12, 2017, at the age of 

16, respondent gave birth to D.S. in Cook County. 

¶ 4 On September 12, 2018, pursuant to section 601 of the Parentage Act, petitioner filed a 

petition to establish parentage and for allocation of parental responsibilities for D.S. In his 

petition, he alleged that D.S. currently resides with him, that respondent is unfit, and that it is 

in D.S.’s best interest for petitioner to be adjudicated her father and allocated sole parental and 

decision-making responsibilities.

¶ 5 On November 13, 2018, respondent filed an answer, pro se, denying that she is unfit to 

exercise parental responsibilities. Respondent also stated that petitioner “is an unfit parent” 

and that she had requested a paternity test because she did not believe that petitioner was D.S.’s 

father. 

¶ 6 On December 24, 2018, respondent filed an “Emergency Motion for Temporary 

Restraining Order Injunctive and Other Relief and an Immediate Surrender of the Child.” In 

the motion, respondent stated that while she was living at her great-grandmother’s home, 

“sometime in September/October 2018 D.S. began to live with [petitioner’s] parents and [she] 

would visit and enjoy parenting time on a daily basis.” However, after filing the instant petition, 

petitioner and his parents began to restrict respondent’s ability to see D.S. Respondent argued 

that she did not consent to petitioner’s parenting time and that he was in violation of section 

622 of the Parentage Act. As such, respondent requested the court order the immediate return 

of D.S. to her care. Attached to her emergency motion was an affidavit in which she averred 

that she was 15 years old, and petitioner was 18 years old when they initiated their sexual 

relationship. She further averred that petitioner was emotionally and physically abusive 

throughout their relationship. The court denied the motion, finding that an emergency did not 

exist.

¶ 7 At some point, the Department of Children and Family Services (DCFS) became involved, 

and on December 28, 2018, DCFS issued a “safety plan,” naming petitioner the custodial 

parent.

¶ 8 On January 7, 2019, respondent filed an “Affirmative Petition and/or Motion to Strike 

Petitioner’s Petition to Establish Parentage and for Allocation of Parental Responsibilities” 

pursuant to section 622(f) of the Parentage Act. Again, respondent argued that allocation of 
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parental responsibilities to petitioner was prohibited under section 622 because conception of 

D.S. was the result of nonconsensual sexual intercourse and she did not consent to petitioner’s 

parenting time.

¶ 9 On February 6, 2019, petitioner filed a response wherein he confirmed that he was 19 years 

old, and respondent was 16 years old when D.S. was born. Subsequently, on February 13, 

2019, petitioner filed a memorandum of law in response to respondent’s motion to strike. In 

the memorandum, petitioner argued that the issue before the court was “whether [respondent] 

consented to the exercise of [p]etitioner’s parental rights.” In that regard, he asserted that 

respondent and her family had consented to petitioner’s parenting time and parental 

responsibilities since D.S. was born and that she is only now objecting to his parenting. 

Petitioner further argued that it would be in the best interest of D.S. to allow him parental 

responsibilities.

¶ 10 Attached to the memorandum was the DCFS “safety plan” dated December 28, 2018. The 

document identified the “safety threat” as a caregiver or member of the household, namely 

respondent, “whose behavior is violent and out of control.” The document stated that 

respondent was required to attend anger management and parenting classes and would only be 

permitted supervised visits with D.S. at petitioner’s parents’ house. Additionally, two police 

reports were also attached to the memorandum as exhibits. In the first, respondent reported an 

online threat made against her grandmother, and in the second, respondent had been reported 

to police as missing by her grandmother, but she returned home stating that she had just been 

lost in Chicago.

¶ 11 A hearing was held, at which counsel for respondent contextualized the issue before the 

circuit court as one of standing. Prior to receiving evidence, the court commented that it would 

be a “tight hearing” on the issue of standing and not “fitness.” The following testimony was 

presented.

¶ 12 Petitioner testified that he was born on June 1, 1998, and has one child, D.S., with 

respondent. He confirmed that he is listed on D.S.’s birth certificate as the father. He stated 

that he met respondent in December 2016.

¶ 13 Respondent testified that petitioner is the father of her child and that she was 15 years old 

when D.S. was conceived. Respondent never complained to the police that petitioner had 

sexual intercourse with her against her will. She also testified that petitioner was mentally, 

physically, and verbally abusive toward her but she never called the police to complain about 

petitioner’s abuse because she was afraid. Finally, respondent testified that she did not consent 

either to petitioner, or to anyone in his family, parenting her child.

¶ 14 Amy S., petitioner’s mother, testified that she met with representatives from DCFS while 

respondent was present and, on those occasions, respondent did not complain that the sexual 

intercourse between her and petitioner was nonconsensual. She further testified that respondent 

never complained to her that petitioner was abusive.

¶ 15 After the hearing, respondent filed a memorandum of law in support of her motion to 

dismiss, in which she argued that petitioner’s reading of the Parentage Act would negate its 

obvious intent to protect victims from their assailants and would permit rapists to remain 

involved with their victims and resulting children through coercion or charm. She also argued 

that a “best interest of the child” analysis is simply not contemplated by section 622. Petitioner 

filed a reply, reasserting his argument that respondent consented to petitioner’s parenting of 
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D.S. “long ago” and that the Act does not support a reading that would allow respondent to 

simply revoke her consent whenever it is convenient for her. 

¶ 16 On October 8, 2019, the circuit court dismissed the petition with prejudice. In doing so, the 

court concluded that respondent has established by “clear and convincing evidence” that 

petitioner had “committed an act of non-consensual sexual penetration for his conduct in 

fathering that child” due to respondent’s age, which rendered her “incapable of giving consent 

to an act of sexual penetration.”

¶ 17 This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 As an initial matter, we note that respondent has failed to file a brief in this appeal. 

Generally, we will not act as an advocate for an appellee who fails to file a brief or search the 

record for the purpose of sustaining the court’s judgment. First Capitol Mortgage Corp. v. 

Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). However, failure to file a brief does 

not require an automatic reversal, and the appellant continues to bear the burden of establishing 

error. Id. at 131-32. “When the record is simple, and the claimed errors are such that this court 

can easily decide them on the merits without the aid of an appellee’s brief, this court should 

decide the appeal on its merits.” Plooy v. Paryani, 275 Ill. App. 3d 1074, 1088 (1995). We find 

that the record and the issues involved herein are straightforward and clear enough that the 

appeal should be decided on its merits.

¶ 20 A. Standard of Review

¶ 21 The issue before us is whether the circuit court erred in dismissing with prejudice the 

petition to establish parentage and allocate parental responsibility or parental time. Before 

turning to the merits of petitioner’s arguments, we must first determine under which section of 

the Code of Civil Procedure (Code) the dismissal should be analyzed. See 735 ILCS 5/2-615, 

2-619 (West 2018). The circuit court did not identify which section of the Code served as the 

basis for dismissal, and other than section 622(f) of the Parentage Act, respondent cites no 

other statutory provision as the basis for which the petition should be stricken. Throughout his 

brief, petitioner argues, in the main, that dismissal under section 2-615 was not appropriate as 

there are facts that may be proven, which would defeat dismissal. He maintains, however, that 

dismissal under either section 2-615 or 2-619 of the Code was improper. Thus, reversal is 

warranted.

¶ 22 Section 2-615 provides that a pleading or portion thereof may be stricken because it is 

substantially insufficient in law. Id. § 2-615. That is, a motion filed under section 2-615 tests 

the legal sufficiency of the pleading. Cohen v. McDonald’s Corp., 347 Ill. App. 3d 627, 632 

(2004). In such a case, the court accepts as true all well-pleaded facts and reasonable inferences 

to be drawn from those facts and determines whether the allegations are sufficient to state a 

cause upon which relief may be granted. Id.

¶ 23 On the other hand, a motion to dismiss pursuant to section 2-619 admits the legal 

sufficiency of the pleading and raises defects, defenses, or other affirmative matters that act to 

defeat the claim. Id. Thus, the issue is whether, after reviewing the pleadings, depositions, and 

affidavits, there is a genuine issue of material fact that precludes dismissal, or whether 

dismissal is proper as a matter of law. Id.
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¶ 24 In evaluating a circuit court’s dismissal, we look at the substance of the motion to dismiss, 

not its label. See Winters v. Wangler, 386 Ill. App. 3d 788, 793 (2008). Respondent stated in 

her petition or motion to strike that it was filed pursuant to section 622(f) of the Parentage Act. 

That subsection permits the mother (or guardian of the mother) to file a petition as “an 

affirmative defense in any proceeding filed by the person described in subsection (a) of this 

Section regarding the child.” 750 ILCS 46/622(f) (West 2018). Section 2-619(a)(9) permits 

dismissal where “the claim asserted against defendant is barred by other affirmative matter 

avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018). 

Because section 622 was intended as an affirmative defense in a proceeding that has already 

been instituted, we construe respondent’s filing as a motion to dismiss pursuant to section 2-

619 of the Code, which, as stated, admits the legal sufficiency of the pleading but raises an 

affirmative defense to defeat the claim.

¶ 25 “The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily 

proved issues of fact at the outset of litigation.” Van Meter v. Darien Park District, 207 Ill. 2d 

359, 367 (2003). “An ‘affirmative matter’ in this instance is something in the nature of a 

defense that negates the cause of action completely or refutes crucial conclusions of law or 

conclusions of material fact contained in or inferred from the complaint.” Anderson v. Chicago 

Transit Authority, 2019 IL App (1st) 181564, ¶ 21. It is the moving party’s burden to establish 

the affirmative matter defeating the nonmoving party’s claim. Pruitt v. Pruitt, 2013 IL App 

(1st) 130032, ¶ 14. In ruling on a section 2-619 motion, all pleadings and supporting documents 

must be construed in a light most favorable to the nonmoving party, and the motion should be 

granted where no material facts are in dispute and the defendant is entitled to dismissal as a 

matter of law. Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171, 176 (2011). However, “[i]f 

the affidavits present disputed facts, the parties must be afforded the opportunity to have an 

evidentiary hearing.” A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905, 913 

(1993).

¶ 26 In the present case, the court held an evidentiary hearing and thus we “ ‘must review not 

only the law but also the facts, and may reverse the trial court order if it is incorrect in law or 

against the manifest weight of the evidence.’ ” Hernandez v. New Rogers Pontiac, Inc., 332 

Ill. App. 3d 461, 464 (2002) (quoting Kirby v. Jarrett, 190 Ill. App. 3d 8, 13 (1989)). A factual 

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

evident or the finding itself is unreasonable, arbitrary, or not based on the evidence presented. 

Offord v. Fitness International, LLC, 2015 IL App (1st) 150879, ¶ 16. Because this appeal 

involves interpretation of the Parentage Act, which is an issue of law, our review is de novo. 

Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 74 (2002). Accordingly, we review 

whether the trial court’s findings of fact are against the manifest weight of the evidence while 

reviewing the questions of law de novo (Offord, 2015 IL App (1st) 150879, ¶ 15), and we may 

affirm the court’s dismissal based on any grounds supported by the record (King v. City of 

Chicago, 324 Ill. App. 3d 856, 859 (2001)).

¶ 27 B. Parentage Act

¶ 28 Section 622 of the Parentage Act, enacted in 2016, is titled “Allocation of parental 

responsibilities or parenting time prohibited to men who father through sexual assault or sexual 

abuse” and provides, in pertinent part, as follows:
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“(a) This Section applies to a person who has been found to be the father of a child 

under this Act and who:

(1) has been convicted of or who has pled guilty or nolo contendere to a 

violation of Section 11-1.20 (criminal sexual assault), Section 11-1.30 (aggravated 

criminal sexual assault), Section 11-1.40 (predatory criminal sexual assault of a 

child), Section 11-1.50 (criminal sexual abuse), Section 11-1.60 (aggravated 

criminal sexual abuse), Section 11-11 (sexual relations within families), Section 

12-13 (criminal sexual assault), Section 12-14 (aggravated criminal sexual assault), 

Section 12-14.1 (predatory criminal sexual assault of a child), Section 12-15 

(criminal sexual abuse), or Section 12-16 (aggravated criminal sexual abuse) of the 

Criminal Code of 1961 or the Criminal Code of 2012, or a similar statute in another 

jurisdiction, for his conduct in fathering that child; or

(2) at a fact-finding hearing, is found by clear and convincing evidence to have 

committed an act of non-consensual sexual penetration for his conduct in fathering 

that child.

(b) A person described in subsection (a) shall not be entitled to an allocation of any 

parental responsibilities or parenting time with that child without the consent of the 

child’s mother or guardian. If the person described in subsection (a) is also the guardian 

of the child, he does not have the authority to consent to parenting time or the allocation 

of parental responsibilities under this Section. If the mother of the child is a minor, and 

the person described in subsection (a) is also the father or guardian of the mother, then 

he does not have the authority to consent to the allocation of parental responsibilities 

or parenting time.

* * *

(f) A petition under this Section may be filed by the child’s mother or guardian 

either as an affirmative petition in circuit court or as an affirmative defense in any 

proceeding filed by the person described in subsection (a) of this Section regarding the 

child.” 750 ILCS 46/622 (West 2018).1

¶ 29 “The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s 

true intent.” Unzicker, 203 Ill. 2d at 75. Intent should be determined more from consideration 

of the reason and necessity, objects, and purposes of the law than from its language. Mashal v. 

City of Chicago, 2012 IL 112341, ¶ 21. The court considers statutory language in light of the 

statute’s purposes and evils the law was designed to remedy. Id. Details of the statute should 

be construed in conformity with its dominant purpose. Chrysler Credit Corp. v. Ross, 28 Ill. 

App. 3d 165, 172 (1975). The court’s construction should be in such a manner as will 

accomplish those objects sought by their enactments. In re Petition of K.M., 274 Ill. App. 3d 

189, 195 (1995). If the plain language of a statute is clear and unambiguous, we will give that 

meaning effect without resort to other aids of statutory construction. Palm v. Holocker, 2018 

1

“ ‘Parental responsibilities’ ” is defined in section 600(d) of the Illinois Marriage and Dissolution 

of Marriage Act as “both parenting time and significant decision-making responsibilities with respect 

to a child.” 750 ILCS 5/600(d) (West 2018). “ ‘Parenting time’ ” is defined in section 600(e) of the 

Illinois Marriage and Dissolution of Marriage Act as “the time during which a parent is responsible for 

exercising caretaking functions and non-significant decision-making responsibilities with respect to the 

child.” Id. § 600(e).
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IL 123152, ¶ 21. The court, of course, must view the statute as a whole, construing the words 

and phrases in light of the other relevant statutory provisions. State ex rel. Leibowitz v. Family 

Vision Care, LLC, 2020 IL 124754, ¶ 35. Finally, we may not depart from a statute’s plain 

language by reading into it exceptions, limitations, or conditions the legislature did not express. 

In re Hernandez, 2020 IL 124661, ¶ 18.

¶ 30 Because the parties were never married, the Parentage Act (750 ILCS 46/101 et seq. (West 

2018)) governs the particular proceedings in this case. In enacting the Parentage Act, the 

General Assembly established a “statutory mechanism that serves to legally establish parent 

and child relationships in Illinois.” In re Estate of Poole, 207 Ill. 2d 393, 404 (2003).2 The 

purpose of the Parentage Act is to further the public policy of Illinois to “recognize[ ] the right 

of every child to the physical, mental, emotional, and financial support of his or her parents.” 

750 ILCS 46/102 (West 2018); J.S.A. v. M.H., 224 Ill. 2d 182, 198 (2007).

¶ 31 Section 622(a) of the Parentage Act identifies the population of men who are prohibited 

from allocation of parental responsibilities or parenting time. Subsection (a)(1) specifically 

identifies men who were either convicted or pled guilty to a criminal sexual offense. 750 ILCS 

46/622(a)(1) (West 2018). Subsection (a)(2) specifically identifies men who fathered children 

resulting from nonconsensual sexual penetration, thereby including perpetrators of sexual 

abuse or sexual assault, but who have not been convicted. Under section 622, a fact-finding 

hearing is mandated for purposes of determining paternity for men who fit within the definition 

of subsection (a)(2). Id. § 622(a)(2). Significantly, subsection (b), which we characterize as 

one of the section’s several consent provisions, identifies those individuals, generally the 

mother, who may consent, by means of an affirmative petition, to an offender father’s parental 

responsibilities and parenting time. 3 Id. § 622(b). The consent provisions are without 

limitation, conditions, or exceptions. Subsection (f) sets out the manner in which the mother 

may either give or object to consent in any proceeding filed by persons identified in subsection 

(a). Overall, section 622 is a legislative acknowledgment that a mother’s will was either 

overborn, such that no consent was given, or that due to the age of minority, no consent could 

be given for the sexual conduct that produced a child. The practical effect of the section is to 

prohibit persons described in section (a) from the rights and enjoyment of parenting unless 

consented to by the mother. In our view, the section promotes Illinois’s strong public policy 

against victimized women suffering revictimization that would result from an offender father 

engaging in parental privilege with the victim mother.

¶ 32 Petitioner does not dispute the circuit court’s finding that there is clear and convincing 

evidence that petitioner committed an act of nonconsensual sexual penetration, which resulted 

in D.S.’s conception. We agree with the finding as well, as it is supported by the evidence 

presented at the hearing. “[T]he prescribed age of consent in Illinois is 17 ***.” People v. 

2

The Parentage Act of 1984 was repealed in its entirety (see Pub. Act 99-85, § 977 (eff. Jan. 1, 

2016)) and replaced by the Parentage Act of 2015 (see Pub. Act 99-85, § 101 (eff. Jan. 1, 2016) (adding 

750 ILCS 46/101 et seq.)). Section 6-5 in the prior act was retained as section 622 in the current act.

3 Under subsection (c), the mother is given authority to “decline support and maintenance 

obligations from the father.” 750 ILCS 46/622(c) (West 2018). Under subsection (d), the mother is 

given authority to consent to the father having “inheritance or other rights,” otherwise he is not entitled 

to any. Id. § 622(d). And finally, under subsection (e), the mother is given authority to consent to 

relatives of the father petitioning for parental responsibilities or parenting time. Id. § 622(e).
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Lloyd, 2013 IL 113510, ¶ 30; see also 720 ILCS 5/11-1.50(c) (West 2018) (the offense of 

criminal sexual abuse occurs where the victim is “at least 13 years of age but under 17 years 

of age” and the person who committed the act of sexual penetration is “less than 5 years older 

than the victim”). Regardless of respondent’s testimony that petitioner “forced” her to have 

sex with him and that he was abusive toward her throughout their relationship, a lack of consent 

is presumed by law due to respondent’s age. Thus, under subsection (a)(2), petitioner is 

prohibited from parenting time with the child. The only contested issue in this case is whether 

the mother’s alleged prior consent to petitioner’s parenting time, once given, may be 

withdrawn. 

¶ 33 Both petitioner and respondent argued the issue of consent to parental responsibilities and 

parenting time in their memoranda related to the evidentiary hearing. The circuit court, 

however, limited the fact-finding hearing to the issue of whether subsection (a) was applicable 

to petitioner. The court’s order following the hearing did not address consent to parental 

responsibilities whatsoever. We note the circuit court’s mention of “consent” in its order. Clear 

from the language, however, is that the court’s ruling was with regard to the issue of consent 

to sexual penetration, as opposed to consent to parenting. 

¶ 34 We believe that the circuit court’s ruling, which made no factual findings on the issue of 

consent, was consistent with the objects of the Parentage Act, protection of the mother’s right 

to withhold consent without fear of coercion by the offender father. Other than subsection 

(a)(2)’s provision for a hearing to determine whether conception resulted from nonconsensual 

sexual penetration, section 622 mandates no judicial determination of any kind on any issue 

covered in this provision.

¶ 35 Petitioner argues in his brief that respondent’s prior consent to petitioner’s parenting, which 

he claims is evidenced by a variety of actions taken prior to the instant action, should foreclose 

respondent from asserting her rights to decide whether petitioner is permitted to parent the 

child. Essentially, he argues that the statute should be construed as requiring a judicial 

determination of whether the mother has previously consented at any point to the father’s 

parenting of the child. He further argues that the DCFS safety plan lends credence to his 

assertion that respondent had previously consented to his parenting privileges. 

¶ 36 We note language in the circuit court’s order that there was “no evidence in the record that 

DCFS conducted a fact-finding hearing prior to placing the child with the [p]etitioner.” 

Regardless, although nothing in section 622 of the Parentage Act bars a mother from giving 

consent without the filing of a petition, neither does anything in the Parentage Act bind her to 

a prior given consent. To ensure against a victim mother’s unwelcome shared parenting with 

an offender father, or potential coerced consent, the Parentage Act provides a mechanism by 

which she may statutorily express her intent to either allow or to bar the same. See 750 ILCS 

46/622(f) (West 2018). No affirmative petition appears in the record. Not only is petitioner’s 

interpretation not supported by the plain language of the statute, but it is also contrary to the 

legislature’s intent to vest in the mother, who conceived as a result of conduct defined in 

subsections (a)(1) or (a)(2), complete autonomy to decide the issue of parenting rights. Further, 

to read the statute as petitioner urges creates the opportunity for an offender father, who might 

have obtained the mother’s consent as a result of coercion, to do exactly that which the 

Parentage Act seeks to protect against. 

¶ 37 Petitioner additionally argues that the court’s dismissal of his petition is not only contrary 

to the plain language of the statute, the policy of our state, but also the best interest of the minor 
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child, “the guidepost for all actions involving minor children, and the very purpose of the Act.” 

To be clear, petitioner brought this action under the Parentage Act. Petitioner misses the point 

of section 622. A determination of parentage does not automatically vest in the father parental 

rights when fatherhood was the result of what the state has defined as illegal or criminal sexual 

conduct. Absent a mother’s free and unfettered consent, fathers identified in section 622(a)(2) 

of the Parentage Act shall not enjoy either parenting responsibilities or parenting time. 

Subsection (f) provides the mechanism by which that consent, in the discretion of the mother, 

may be permitted or barred. 

¶ 38 Further, section 622 parentage proceedings are not proceedings like those under the 

Adoption Act (750 ILCS 50/1 et seq. (West 2018)), the Juvenile Court Act of 1987 (705 ILCS 

405/1-1 et seq. (West 2018)), or the Illinois Marriage and Dissolution of Marriage Act (750 

ILCS 5/101 et seq. (West 2018)) in which custody determinations are guided by the overriding 

principle of the best interest of the child. Notably, this matter was not joined with any other 

permissible proceeding in which such determinations are required. See 750 ILCS 46/611(a) 

(West 2018) (except as provided in subsection 611(b), a proceeding to adjudicate parentage 

may be joined with another appropriate proceeding, such as for adoption or termination of 

parental rights). Further, if under section 622, “in the best interest” were to present as an 

overriding factor to consent, in cases where a mother is determined to be unfit, as is alleged 

here, the offender father might be awarded parental privileges, despite his prior offending 

conduct. Clearly, such a result would be in contravention of the Parentage Act. In any case, 

had the legislature intended the mother’s consent under section 622 to be subject to a best 

interest of the child analysis, nothing precluded it from saying so. 

¶ 39 Petitioner points to no case which construes section 622(b) of the Act, and we are only 

aware of one, Deaver v. Jordan, 2020 IL App (5th) 200084-U.4 In Deaver, the circuit court 

granted the father’s petition for parenting time. Id. ¶ 16. On appeal, the mother argued that the 

court erroneously interpreted section 622 of the Parentage Act in determining that both she and 

her adoptive mother had previously consented to the father having parenting time with the 

child. Id. ¶ 22. A divided panel of the Fifth District Appellate Court affirmed the circuit court’s 

ruling, finding that the plain language of section 622(b) allows for allocation of parental 

responsibilities where the minor mother consents, the evidence supported a conclusion that she 

had consented, and the best interest of the child would be served by allocating parental 

responsibilities to the father as he had already established a relationship with the child. Id. ¶ 29. 

The court held that a showing of prior consent was sufficient to nullify the applicability of 

section 622. Id. The court further stated: “The plain language of 622(b) does not require a 

mother’s continued or ongoing consent for each exercise of parental responsibility or each 

exercise of parenting time by the father.” Id. The dissent, however, came to the opposite 

conclusion. The dissent took the position that after finding that the father fit within the 

definition of section 622(a)(2), the court had no authority to enter an order of parental 

responsibilities “unless the minor mother is in agreement,” which she was not in this case, as 

evidenced by the contentious legal dispute. (Emphasis in original.) Id. ¶¶ 38-39 (Barberis, J., 

4

This order was issued pursuant to Illinois Supreme Court Rule 23 (eff. Apr. 1, 2018) prior to 

January 1, 2021. Therefore, the recent amendment to Rule 23(e)(1) is inapplicable as the Fifth District 

did not intend for it to serve persuasive value. Even so, this court is not bound by even published rulings 

from other districts, divisions, or panels. See O’Casek v. Children’s Home & Aid Society of Illinois, 

229 Ill. 2d 421, 440 (2008).
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dissenting). The dissent rejected the majority’s conclusion that the father was permitted 

parental responsibilities based on the mother’s prior consent. Id.

¶ 40 We believe that the dissent in Deaver reached the correct result. Here, respondent filed an 

affirmative defense to the petition seeking parental responsibilities and parenting time. Even 

assuming her prior consent, other than filing her affirmative defense to bar parenting time, 

nothing more in the statute is contemplated and nothing more in the statute is required.

¶ 41 We are not unaware of the potential dangers to which petitioner alludes should a mother 

be permitted to give and then withdraw consent. We trust that the legislature was also aware 

of this possibility in enacting the statute. However, we believe that the parenting rights vested 

exclusively in the mother strike the proper balance under the circumstances addressed by this 

section of the Parentage Act. Further, as section 622(f) makes available the filing of an 

affirmative petition, we believe that the likelihood of repeated withdrawals of consent is 

diminished. We would also point out that it is no more likely that consent, once given, will be 

withdrawn than it is that once given it would not be. In any case, given the objects of section 

622, the possibility that a mother might change her mind is not reason either to graft on 

exceptions or to ignore the plain language of the Parentage Act. 

¶ 42 Additionally, the absence in section 622 of any procedural directives to the courts supports 

a conclusion that the legislature did not intend a mother’s consent to be subject to complex and 

a potentially protracted judicial determination. The legislature’s silence in this regard comports 

with an interpretation that the mother’s consent is to be determined upon the filing of either an 

affirmative petition or defense, as it would likely be a straightforward determination. We also 

find it implausible that the legislature intended for the clause to operate on the basis of prior 

consent. Notably, in the case of a mother, not yet of majority age, any alleged prior “consent” 

would not be informed or knowing, as it is likely that she would lack knowledge of her legal 

authority under this section to deny parental privileges to an offender father. 

¶ 43 Finally, when viewing the plain language of the Parentage Act—a person qualifying under 

subsection (a) shall not be allocated parental responsibilities without the consent of the 

mother—the consent clause suggests a present tense. If the legislature had intended 

nullification of the provision based on the mother’s prior consent, it would have used the past 

tense. For example, the clause may have been worded instead as “unless the mother has 

consented.” Because the clause is written in the present tense, it logically follows that consent 

is to be determined based upon the mother’s filing of an affirmative petition—not by some 

other means at some other time in the past.

¶ 44 We note as an aside that Illinois enacted section 622 around the time when there was a 

nationwide effort to enact legislation allowing a parent to terminate the parental rights of a 

person who fathered a child through rape.5 This was in no small part due to Congress passing 

5

Although several other states have statutes prohibiting a father whose child was conceived as a 

result of sexual assault or nonconsensual sexual intercourse from enjoying parental privileges, none 

appear identical to statute at issue. For instance, others may require express written consent from the

mother, require the court to conduct a best-interests analysis, or some combination of the two before 

waiving application of the statute. Moreover, these statutes, just as ours, are relatively new and many 

have not been subjected to judicial interpretation. See Anastasia Doherty, Choosing to Raise a Child 

Conceived Through Rape: The Double-Injustice of Uneven State Protection, 39 Women’s Rts. L. Rep. 

220, 314-56 (2018) (Tables 3 to 6).
- 11 -

the Rape Survivor Child Custody Act to incentivize state legislation with federal funding. See 

34 U.S.C. § 21301 (2018). It was against this backdrop that Illinois, and several other states, 

enacted laws to provide agency for a victim-mother who has chosen to raise a child, conceived 

out of rape, and to prevent a revictimization or “a second injustice in finding no legal protection 

against custody or visitation being awarded to a rapist parent.” Anastasia Doherty, Choosing 

to Raise a Child Conceived Through Rape: The Double-Injustice of Uneven State Protection, 

39 Women’s Rts. L. Rep. 220, 224 (2018).

¶ 45 Here, our review of the record demonstrates that respondent not only made clear in her 

pleadings that she does not currently consent to an allocation of parental responsibility to 

petitioner but, additionally, during the hearing on the issue of parentage, she also testified that 

she does not consent to him or his family members parenting D.S. Although the circuit court 

did not expressly rule on respondent’s affirmative defense to the petition, as our review is 

de novo, we do so here and find that, pursuant to subsection (b), petitioner is prohibited from 

parental responsibilities and parenting time. Petitioner’s references to respondent’s past 

behavior, police reports, and the safety plan are irrelevant in these proceedings. The only issue 

is consent, and respondent having presented an affirmative defense, no amendment of 

petitioner’s petition could alter that result. 

¶ 46 We hold that section 622(a)(2) is applicable to petitioner and, pursuant to section 622(f), 

respondent has presented an affirmative matter cognizable under section 2-619 of the Code. 

Accordingly, the circuit court did not err in dismissing the petition with prejudice.

¶ 47 That said, having reviewed the record, it does not escape our notice that the minor in this 

case may require, for her well-being, intervention from the appropriate state agencies charged 

with ensuring the physical and emotional well-being of minors. The absence of a stable home 

environment can have long-lasting negative effects on every aspect of a child’s development. 

Here, we hold only that respondent has not consented to petitioner’s request for parental 

responsibilities and parenting time for D.S. Nothing in this court’s opinion, however, should 

be read to impede the activities of any appropriate state agencies in the discharge of their duties 

on behalf of the minor child. Neither, by our holding, are either of the parties foreclosed from 

the filing of any future petitions.

¶ 48 III. CONCLUSION

¶ 49 For the reasons stated, we affirm the judgment of the circuit court.

¶ 50 Affirmed.