## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Parentage of J.W. , 2012 IL App (4th) 120212

Appellate Court Caption In re: the Parenta g e of J .W., a Minor; STEVE TAYL OR, Petitio n er

Appellant, v. AMY WI L L S-MERRI L L and J ASON WI L L S, Respondents-Appe llees.

District & N o. Four th District Docke t No. 4-12-0212

Argued Rule 23 Order

filed
Rule 23 Order withdrawn Opinion filed J uly 10, 2012
J uly 23, 2012

August 15, 2012
J uly 23, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where the natura l fathe r of responde nt’s child obtained DNA proof of his pater nity sever al year s afte r the child’s birth and filed a pater nity action, the appellate court reve rsed the trial court’s decision finding that he was the child’s pare nt b u t denying his petition for visitation based on the holding in Gagnon that the burden of proof is on the noncustodial pare nt seeking visitation under the Parenta g e Act to establish that visitation is in the minor’s best interest, since the applicable standard is section 607(a) of the Marr iag e Act, including the presumption that the fathe r is entitled
to rea sonable visitation rig hts unless visitation would endang er seriously the child’s phy sical, mental, moral or emotional health, and the cause was

rema nded for the cr eation of suc h visitation.Dec ision Under

Review Appea l from the Circuit Court of Ver milion County
, No. 09-F -12; the Hon. Kar en E. Wall, J udg e, pre siding.

J udg ment Reverse d and re manded with dire ctions.

Counsel on Appea l J ames A. Martinkus (argued), of Erwin, Martinkus & Cole, Ltd., of Champaig n, for a

ppellant.

David Sotomayor (a

rgued), of Orland Par

k, for a ppellee Jason Wil ls.

Panel J USTI CE KNECHT deliver ed the judg ment of the c ourt, with opinion. Presiding J ustice Turner and J ustice Appleton concur red in the judgme nt and opinion.

OP INION

¶ 1 In the summer of 2001, responde nt, Amy Wil ls-Mer ril l, c onceive d a child, J .W., who was born in April 2002. Amy marrie d responde nt, J ason Wil ls, in Marc h 2003, believing him to be the fathe r of J .W. The couple divorce d in J anuar y 2006 and Amy had phy sical custody of J .W. In 2008, petitioner, Steve Taylor, contac ted Amy afte r seeing a photogr aph of J .W. and asked if she could possibly be his child. Amy answe red in the aff irmative. Deoxy

ribonucleic acid (DNA ) tests wer e conducte d with the result being a match for Steve as the fathe r of J .W. In Fe bruar

y 2009
, S t ev e filed a pare ntag e action pursuant to the I llinois Parenta g e Act of 1984 (Pare ntag e Act) (750 I L CS 45/1 et s eq. (West 2008)) to deter mine th e ex istence of a fathe r and c hild relationship betwee n himself and J.W

. ¶ 2 Meanwhile, in the dissoluti on action betwee n Amy and J ason, the trial court enter ed an order at J ason’s re quest order ing Amy to not reside or cohabit with Steve or per mit him to have contact with J.W . At Steve’s request, t he two case s wer e consolidated in April 2009. In September 2009, an order of pare ntag e was enter ed as to Steve. No visitation was order ed. ¶ 3 In prepa

ration for a hear ing on Steve’s reque st for visitation with J .W., the guardia n ad litem (GAL ) prepar ed an d fi l ed repor ts on behalf of t he mi nor, and a clinical psycholog ist also prepa

red a repor

t. Due to J .W.’s young age an d t h e fac t she had a strong rela tionship with J ason but no prior rela tionship with Steve, the psychol o gi s t an d the GAL both

rec ommended no visitation for Steve at the prese nt time. In J uly 2011, the trial court denied Steve’s re quest for visitation and re serve d the issue of c hild support.

-2-¶ 4 Amy filed a motion to rec onsider the trial court’s order as to a specific po i n t , an d a

clar ified order was enter ed in October 2011. In J anuar y 2012, the parties enter ed an agree d order as to child support. In Fe bruar y 2012, Steve filed his notice of appea l, claiming the
court err ed in requiring him to have the burden of proving visitation was in J .W.’s best interest and the court err ed in not g ranting him a ny visitation. We reve rse and rema nd with direc tions.

¶ 5 I . BA CKGROUND ¶ 6 In J une 2001, J ason and Amy beg an an intimate relationship. J ason enlisted in the United States Army and wa s soon stationed awa y from ce ntral I llinois

. During that same summer, Amy had a one-time sexual encounte r with Steve. When she beca me pregnant, Amy assumed the fathe r of the child was J ason. J ason supported Amy throug hout her pregnancy althoug h he was stationed in N orth Carolina. J.W . was born on April 15, 2002, and J ason was listed as her fathe r on the birth ce rtificate

. ¶ 7 On Marc h 14, 2003, Amy and J ason wer e marrie d in North Carolina. During his mil itary

car eer , J ason serve d in both Iraq and Afghanistan. On November 5, 2003, J ason was sever ely injured in Iraq. In Dec ember 2003, J ason, Amy
, and J .W. returne d to Danville, I llinois

. They

re m ained toge ther until J anuar y 6, 2006, when a dissoluti on of marria g e was g rante d

. Pursuant to the terms of the marital settl ement agr eeme nt, which st ated J ason t o be J .W.’s fathe r, Amy was g rante d sole custody of J .W. but J ason had visitation privileg es and support obligations reg ardingJ .W. ¶ 8 In the summer of 2008, Steve saw a picture of J .W. on Amy ’s acc ount on a social media site. He t h o u gh t J .W. rese mbled him and contac ted Amy reg arding the possibili ty he was J .W.’s biologica l fathe r. Amy indicated there was a possibili ty , which prompted Steve, Amy
, and J .W. to submit to DNA testing in th e fa l l o f 2 0 0 8

. In September 2008, Amy marrie d J oseph Merrill. Be tween the summer of 2001 and the summer of 2008, Steve h ad l i m ited, if any , contac t with Am y an d no contac t with J .W. and had no rea son to believe he was J .W.’s father. ¶ 9 When the DNA results indicated Steve was J .W.’s fathe r, Amy left Merr ill and beg an a relationship wi t h Steve. She also notified J ason in November 2008 he was not J .W.’s biologica l fathe r. At thi s p o i n t i n t ime, J .W. was 5 1/2 y ear s old and J ason was the only fathe r she ha d ever

known. They

had a g ood, close re lationship. ¶ 10 Amy decide d J .W. should g et to know Steve. J .W. spent a lot of time with Steve and his extended family

over the holiday

season f rom late Nove mber 2008 to J anuar y 1, 2009. On Fe bruar y 4, 2009, Steve filed a verifie d petition to deter mine the exis tence of a fathe r-c hild relationship pursuant to the Parenta g e Act (750 I L CS 45/1 et seq. (West 2008)) in Ver milion C o u n t y circ uit court case No. 09-F -12. In addition to the establishm ent of pater nity
, Steve asked f or joint custody

of J.W . and visitation. ¶ 11 On J anuar

y 9, 2009, in Ver

milion County case No. 05-D-232, the dissoluti on of marria g e

case for J ason and Amy
, the cour t entere d an orde r statingAmy shall not reside or c ohabit wi th Steve or permit J .W. to have any contac t with Steve or promote the exis tenc e o f an y pare ntal relationship betwee n Steve and J .W. On Fe bruar y 17, 2009, Steve filed a motion to

-3-consolidate the dissoluti on proce eding betwee n J ason and Amy with his pare ntag e action

since both ca ses wer e dea ling with custody and visitation issues involving J .W. On M arc h 5, 2009, prior to the court g ranting Steve’s motion to consolidate, J ason filed a motion in the
pare ntag e case asking for, in the event Steve was deter mined to be J .W.’s biologica l fathe r,

a hear ing to deter

mine the best interests of J .W. befor e visitation was g rante d betwee n Steve and J.W

. ¶ 12 On Ap ri l 1 7
, 2 0 0 9
, the pare ntag e action was consolidated with J ason and Amy ’s dissolut i o n case and a written order was enter ed embodying the order barr ing contac t betwee n Steve and J .W. as enter ed in the dissoluti on case on J anuar y 9. On May

13, 2009, Steve filed a motion to vaca te, modify
, or rec onsider the order barr ing him from any contac t with J .W. ¶ 13 On S ep t em b er 9
, 2009, in the consolidated case s, the trial court enter ed an order of
pare ntag e as to Steve. Howeve r, the court indicated it was not order ing any visitation in the pater nity case

. The court further stated all previous order s wo u l d stand and be enfor ced. Discover y commence d prior to a hear ing on the issue of visitation betwe en Steve and J .W. Financ ial information for Steve, Amy
, and J ason was also g ather ed for deter mining child support. ¶ 14 Dr. Marily

n Fr ey , a clinical psycholog ist, was approve d by all parties and appointed by the trial court to conduct an evaluation to deter mine whether visitation with Steve and J .W. was in the best interests of J .W. at t his time. On October 8, 2010, Dr. F rey filed her repor t with the court. Dr. Fr ey interviewe d Steve, Amy
, and J ason and observe d J .W. interac t with J ason and Amy

. Dr. Fr ey found no rea l attachme nt betwee n J .W. and Steve. J .W

. n ev er mentioned Steve when asked by Dr. Fr ey to name members of her family

. Fur ther, Dr. Fr ey fo u nd for a child of J .W.’s young ag e, introducing Steve to her as her fathe r wo u l d b e disruptive of her establi s h ed cl ose rela tionship with J ason and could easily result in difficulties ac ademica lly , emotionally , and psycholog ically as children of

that ag e ar e ver

y attuned to having their lives function in an order ly manner and wanting to be like their peer s. Dr. F rey opined Steve should not have visitation with J .W. at this time and J .W. shoul d be evaluated by a psy cholog ist once a y ear to deter mine when she would b e re ad y t o have a relationship wit h Steve. ¶ 15 The GAL appointed by the court on behalf of J .W. also reported it would not be in the best interests of J .W. to have visitation with Steve at this time. The GAL could not g et J .W. to mention St eve e ven whe n he aske d her if there had been any big e vents occ urringin her life rec ently

. When the GAL asked her direc tly about Steve, J .W. identified him as a friend of her mother’s and the brother of her baby sitter. She appar ently did not identify him as her fathe r or a

fathe r figure to he r. ¶ 16 On J une 8 and 10, 2011, the trial court heard testimony from various wi tnesses on the issue of visitation between Steve and J.W . Dr. F rey ’s re port was introduc ed into evidenc e. Dr. Fr ey admitted she did not have concr ete evidenc e spending time with Steve would be a dang er to J .W. Her opinion was based on her observations of the lack of attachme nt betwee n J .W. and Steve and child development rese arc h indicating multipl e potential probl ems if Steve wer e made part of J .W.’s life at this time. Dr. Fr ey left open the possibili ty of Steve’s

-4-involvement in J .W.’s life i n the future by asking she be examined by a psy cholog ist once

y ear ly to deter

mine if it would be in her best interest to introduce Steve to her at a later time. ¶ 17 In addition to cross-examining Dr . Fr ey as to her r eport, Steve pr esente d the testimony of Dr. J udy Osg ood, a counseling psycholog ist reta ined to revie w the repor t of Dr. Fr ey

. Dr. Osg ood testified Steve did not prese nt any risk fac tors which would cre ate any dang er to J .W. She also stated it would be detrimental for J .W. to miss out on contac t with Steve and his extended family

. Dr. Osg ood stated it was in J .W.’s best interest to resume contac t with her biologica l father . Dr. Osg ood did not observe J.W . interac t with St eve, Jason, or Amy

. ¶ 18 Other witnesses, such as Steve’s sisters, tes t i fi ed t o t h e go o d re l at i o n s hip Steve developed with J .W. in the s hort period of time he was allowed to interac t with her. St eve and J .W., and J .W. and the sisters’ families, eng ag ed in many activities at Thanksg iving and Christmas of 2008. Steve also testified to the per iod of time he spent with J .W. ¶ 19 Through the t estimony of bot h Amy and S teve, as well as other witnesses, it was clear Steve had a cce ss to J .W. after the c ourt’s orde r bar ringhim from contac t with her. ¶ 20 The GAL testified he rec ommended J .W. not be told of or introduced to a new fathe r. He indicated he was not a psycholog ist and was rely ing upon Dr. Fr ey ’s opinion. He also noted in his int ervie ws with J .W. she considere d Steve to be si mply a friend of her mother ’s and did not identify him as her fathe r, despite being told he was her “re al” dad by Amy and Steve in 2008. ¶ 21 On J uly 18, 2011, the trial court enter ed an order finding Steve had the burden of proving visitation was in J .W.’s best interest by a preponde ranc e of the evi d en ce. The court then found it was not in the best interest of J .W. for Stev e to be introduced into her life at this time a nd denied his reque st for visitation. All parties and their families wer e order ed not to promote the exis tence of any pare ntal relationship betwee n J .W. and Steve. Fur ther, the court agree d with Dr. Fr ey ’s idea of y ear ly psycholog ical examinations for J .W. and order ed those be fac ilitated by Amy to deter mine J .W.’s understand i ng of Steve’s relationship to her. Finally
, al l p ri o r o rd ers of custody and visitation involving Amy
, J ason, and J .W. wer e to

rema i n i n full forc e and eff ect and wer e not modified. The order rese rved issues of child support, day car e expenses, i n co m e tax exemption, and retroa ctive pay ments for further hear ing. ¶ 22 On August 16, 2011, Am y fi led a petition to vacate, modify
, or rec onsider the orde r enter ed as to the issue of the require d y early psycholog ical examinations and who should pay for them. On August 17, 2011, Steve filed a motion for extension of time to file a motion for

re h ea ri n g , retria l, or modification of judgme nt or to vacate the judgme nt. On October 5
, 2011, t h e t rial court hear d the posttrial motions and took the matter under advisement,

rese rving Steve’s motion for extension of time. On October 1 3, 2011, the court enter ed a supplemental orde r dea ling with the issue of y ear ly psycholog ical examinations for J.W

. ¶ 23 On J anuar

y 26, 2012, the parties prese nted an agr ee d order on the rema ining issue of child support. On that same date, Steve’s motion for extension of tim e wa s withdrawn. On Fe bruar y 15, 2012, the agree d order was ent er ed by the trial court. On Fe bruar y 23, 2012, Steve filed his notice of

appea l.

-5-¶ 24 I I . ANALYSI S

¶ 25 A. J urisdictional I ssues ¶ 26 J ason raises the issues of whether Steve’s notice of appea l w as timely filed, and, if not, whether his appea l should be stricken. In response , Steve has filed a motion to strike J ason’s brief, arguing he has n o s t an d i n g to interfe re with Steve’s reque st for visitation with his b i o l o g ical child. Steve contends J ason has not adopted J .W. and the presumption he wa s J .W.’s fathe r has been rebutted by the trial court’s finding Steve was J .W.’s biologica l fathe r. Steve’s motion was taken with the case and will be resolved prior to rea ching the issue raised by J ason. ¶ 27 On April 17, 2009, pursua nt to St eve’ s reque st, his pare ntag e action, No. 09-F-12, and the prior dissoluti on of marria g e action betwee n J ason and Am y , No

. 05-D-232, wer e consolidated. Steve did not raise the issue of J ason’s lack of standing to partic i p at e i n t h e pare ntag e portion of the procee dings de terminingwhether visitation wit h Steve was in the best interest of J .W., who was J ason’s leg al d au gh t er when Steve asked the case s be consolidated. Steve did attempt to raise the issue orally during the J une 2011 hear ing on his visitation when J ason’s counsel first attempted to cross-e x amine a witness at t hat hearing

. The trial court denied the objection as to J as on’s standing and allowed him to participa te fully in the hear ing on Steve ’s re quest for visitation. ¶ 28 J as o n argues he is a judicially rec og nized pare nt of J .W. with visitatio n an d s up p o rt obligations in full forc e an d eff ect. No court order has chang ed his pare ntal rights relating to J .W. ¶ 29 Steve’s arguments conce rning J ason’s lack of standingare disinge nuous. Steve invited
p articipation by J ason by asking the case s be consolidated and stating, in his motio n t o consolidate, the matters in both case s wer e “interr elated” as they both involved custody and visitation rig hts with J .W. He reque ste d t h e consolidation “to ensure consistency and uniformity in court order s as well as ensuring judicial economy .” J ason no longe r has the presumption of being J .W.’s fathe r, but he has an ong oing relationship with her as the only fathe r she has ever known and has leg al rig hts and responsibilities resulting from the dissoluti on proce eding s. To achie ve consistency and uniformity in court order s, J ason would be a nece ssary party to the proce eding s in order that his rig hts and respon s i b i l i ties toward J .W. were pr otected or

enfor ced. ¶ 30 Steve m ay not want J ason t o argue aga inst visitation betwee n Steve and J .W. The best interests of J .W. control, not what J ason may or may not want in reg ard to who spends time with J .W. At the same time, J ason was made a party to the paren t age ac t i on upon Steve’s
reque st and for g ood rea sons. He has standing to participate i n this appea l. Steve’s mot ion to strike J ason’s brie f is denied. ¶ 31 J ason contends Steve’s appea l was not timely filed and the appea l should be stricken. We disagree and find Steve’s appea l timely filed. The trial court’s order finding Steve to be J .W.’s biologica l fathe r was enter ed on September 9, 2009. The order denying him visitation with J .W. was not enter ed until J uly 18, 2011. In the J uly 2011 order
, the court stated it was

rese rving issues as t o child support at t hat t ime and would hear evidenc e on that issue at a l at er d at e. This J uly 2011 order made no finding it was a final and appea lable order fo r

-6-purposes of I llinois Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010). On Dec ember 8, 2011, the case was called for a confe renc e on child support in the court’s chambe rs. The case was

resc heduled for J anuar

y 26, 2012, on which date the court rec eived an agr ee d o rd er as to child support

. On Fe b ru ar y 15, 2012, the trial court enter ed a written order as to child support. All issues were resolved a nd a fina l, appea lable orde r wa s entere d. Steve filed his notice of appea l on Fe bruar y 23, 2012, appea ling just the issue of visitation. No final order

was enter ed in the case until Fe bruar y 15, 2012. Stev e’ s ap p eal filed eig ht day s later was timely filed.

¶ 32 B. B urden of Proof ¶ 33 Steve argues t he tria l court applied the wrong burden of proof when i t held the burde n of proof is on the noncustodial pare nt seeking visitation under the Parenta g e Act to establish visitation is in the best interest of the minor child involved. This was the position this district of the I llinois Appellate Court a nnounced in Departme nt of Public Aid ex rel. Gagnon-Dix v. Gagnon
, 288 I ll. App. 3d 424, 428, 680 N.E.2d 509, 512 (199 7 ). Steve argues bot h this and other districts of this court have dis agr eed with the Gagnon decision and applied a differ ent burden of proof when a noncustodial pare nt seeks visitation with his child. We have revie wed the case s cited by Steve and conclude the standard for al l n o ncustodial pare nts shoul d be the same whether the case orig inates under the Parenta g e Act or the I llinois M ar ri ag e and Dissolution of Marr iag e Act (Mar riag e Act) (750 I L CS 5/101 et seq. (W es t 2010)). ¶ 34 In Gagnon
, a case broug ht under the Parenta ge Ac t , we fo u n d
, d es p i t e an orde r establishing pater

nity and setting child support, the fathe r was not a utomatically entitled to visitation, espec ially wher e the child was alre ady eig ht y ear s old and had never met him. Gagnon , 288 I ll. App. 3d at 427, 680 N.E.2d at 511. Sec tion 14(a)( 1) of the Par entag e Ac t (750 I L CS 45/14(a) (1) (West 2010) ) states visitation privileg es for the noncustodial pare nt shall be deter

mined in acc ordanc e with the “re levant fac tors” of the Marr iag e Act (750 I L CS 5/101 et seq. (West 2010)) when deter mining the best interests of the child. In Gagnon
, this court held the provisi on of section 14(a)( 1) wa s a re fer ence to section 602 of t he Marriag e Act (750 I L CS 5/602 (West 2010) ), which lists fa ctors to be considere d in determiningthe best interests of a child and is not a ref ere nce to section 607(a) of the Marr iag e Act (750 I L CS 5/607(a) (West 2010)), which states a noncustodial pare nt is “entitled” to “re asonable ” visitation unless visitation would seriously endang er the child’s “phy sical, mental, moral or emotional health.” (Interna l quotation marks omi tted.) Gagnon
, 28 8 I l l

. 2 d at 427-28, 680 N.E.2d at 512. We held section 14(a) (1)’ s ref ere nce to “re levant stan d ar d s ” found in the M ar ri ag e Act means not ever y rule a court would apply in a dissoluti on of marr i age ca s e applies in a pare ntag e case

. Gagnon
, 288 I ll. App. 3d at 428, 680 N.E.2d at 512. We f ound

no presumption it is in the best interest of a child to ha ve visitation with a biologica l f ather who has ha d nothing to do with the child for eig ht y ear s. ¶ 35 The first case Steve cites in opposition to our holding in Gagnon is the Third District’s decision in W

enzelman v. Benne tt , 32 2 I l l. App. 3d 262, 748 N.E.2d 1266 (2001). In W enzelman
, the court stated “abse nt ex i gen t circ umstances,” biologica l pare nts enjoyed a

-7-presumption they are entitled to visitation whether visitation is reque sted under the Marr iag e

Act or the Parenta g e Act. W enzelman
, 322 I ll. App. 3d at 263, 748 N.E.2d at 1267. The court went on to distinguish Gagnon by noting an exigent circumstance exis ted t here and it was interpre ting Gagnon to mean any pare nt seeking visitation afte r eight y ear s of no contac t with

a child has the burden of proof to show visitation is in the child’s best interest. W enzelman
, 322 I ll. App. 3d at 264-65, 748 N.E.2d at 1268. ¶ 36 The F ifth District in Jines v . Jurich , 335 I ll. App. 3d 1156, 1160, 783 N.E.2d 147, 150 (2002), and the First District in In re Parentage of Melton
, 314 I ll. App. 3d 4 7 6
, 4 8 1
, 7 3 2 N.E.2d 11, 15 (2000), both disag ree d with Gagnon and held section 607(a) of the Marr iag e Act (750 I L CS 5/607(a) (West 2010)) should be considere d as a “re levant” standard to be consider e d w

h en deter mining visitation rig hts in a case brought under the Parenta g e Act, thus entitling a noncustodial pare nt to visitation unless it can be shown visitation with the pare nt will endang er the child. ¶ 37 We ack n o wl ed g e these case s and their holdings and conclude our decision in Gagnon should be revisited. ¶ 38 Our decision in In re Marriage of Slayton
, 292 I ll. App. 3d 379, 685 N.E.2d 1038 (1997), permitted visitation with the presumed fathe r, who was not the child’s biologica l fathe r. We applied section 6 0 7 (a ) of the Marr iag e Act (750 I L CS 5/607(a) (West 1994)). This is not logic ally consistent with our dec ision in Gagnon

. ¶ 39 We conclude section 607(a) of the Marr iag e Act is the rele vant standard to be conside red whether visitation is soug ht under the Parenta g e Act or the Marr iag e Act. We are confide nt trial courts can sort out those case s s uch as Gagnon
, wher e a biologica l fathe r soug ht visitation aft er no contac t for eig ht y ear s, and Slayton
, wher e a presumed fathe r eag erly
soug ht continued visitation and contac t with the son born during his marria g e to the child’s mother. ¶ 40 The a

pplicable standa

rd her e is section 607(a ) of the Marr iag e Act (750 I L CS 5/ 607(a) (West 2010)). There is a presumption Steve Taylor is entitled to rea sonable visitation rig hts unless visitation would end an ger seriously J .W.’s phy sical, mental, moral, or emotional health. The trial court err ed when it place d the evidentiar y burden on Steve to show visitation

was in the best interest of his daughter. The court justifiab l y l o o k ed at our decision in Gagnon and also noted case s from other districts that have distinguished or declined to follow Gagnon

. We do not fault the court for following Gagnon
, but as we decline to follow that decision, we also note the fac ts befor e us are substan t i al l y differ ent from those in Gagnon and other

cited ca ses. ¶ 41 S teve had no knowledg e he was a fathe r until he looked at Amy ’s acc ount o n a s o ci al media site and saw her child. He noted the child’s rese mblance to him and contac ted Amy

. Shortly there afte r DNA testing proved he was J .W.’s biologica l father. Be tween 2001 and 2008, Steve had littl e or no contac t with Amy and did not suspect he was a fathe r. The November -De cembe r 2008 contac t Steve and his family then had with J .W. has been styled
as t he beginning of a pare nt-child relat i o n s h i p

. It is difficult t o deter mine from thi s rec ord whether J .W., then 5 1/2 y ear s old, fully understood her connec tion to Steve or his family
, but it is clea

r there was no delay on Steve’s part in attempti n g t o establish a healthy
,

-8-meaning ful relationship wit h J .W.

¶ 42 C. Best Intere st Hear ing ¶ 43 After the hear ing on visita t i o n , t h e t ri al co urt found at the prese nt time it was not in J .W.’s best interest t o i n t ro du ce or reintroduc e Steve into her life. Steve argues it was an abuse of discretion for

the trial cour

t to deny visitation t o him. ¶ 44 A trial court has broad di s cr et i o n i n fashioning the terms of visitation and its decision will not be overturne d absent abuse of that discretion. In re Marriage ofEngelke ns , 354 I ll. App. 3d 790, 792, 821 N.E.2d 799, 802 (2004)

. ¶ 45 Steve presented evidence indicating he and J .W. had a g reat deal of fun t og ether when he was introduced as her “re al” dad in November and Dec ember 2008. He and his witnesses testified they had no trouble bondingover the Thanksg iving a nd Christmas holiday season when Amy chose to spend t he holi day s with Steve and his extended fami l y

. Ho we ver, the unrebutted testimony of Dr. Fr ey and the GAL showed J .W. did not know who Steve was to her, failing to identify him to Dr. Fr ey and identifying him as a friend of her mother’s to the GAL

. J .W.’s actions and behavior did not fully support Steve’s claims of a close and loving relationship betwe en him and J .W. Two months of holiday interac tion do not c ance l out or

overc ome y ear s of no contac t at all, and ca nnot be dee med an e stablished relationship. ¶ 46 Dr. Fr ey testified, based on J .W.’s stag e of development, introducing Steve to her at this time and starting visitation would place J .W. at incre ased risk of harm aca demicall y , socially
, and em o t i o n ally

. Dr. Osgood, on behalf of S teve, and Steve criticiz ed Dr. Fr ey ’s opi nions

as to risk of harm to J .W. becaus e Dr

. Fr ey based them on long- standing theories of child development raised in the 1950s and 1960s and they wer e speculative rathe r than cer tain to

occur

. ¶ 47 The theories wer e develope d a number of y ear s ag o, but nothing in the rec ord indicates they had been ref

uted in the psycho l o gi cal community

. Any predic tion of risk possibly incurre d in future events is speculative but still may be worthy of consideration. There is also the risk J .W. may rese nt those persons who preve nted her biologica l fathe r from establishing

a relationship with her, particula rly when he made a conce rted eff ort to do so. W e d o n o t discount the conce rns raised by Dr. Fr ey , but in the context of this case , those conce rns and opinions do not show Steve would seriously endang er J .W.’s phy sical, mental, moral, or

em o t i o n al health. The trial court could have taken steps to reduc e any risk of harm b y g radua lly introducing J .W. to S t ev e under the guidance of an experience d profe ssional. Visitation need not be e x pansive for it to be meaning ful. ¶ 48 J .W. is fortunate to have both a leg al, o r p re s umed, fathe r and a biologica l fathe r who
want involvement in her life. Both Steve and J ason are to be complimented for their car e and interest in J .W. Both of them have the opportunity to cre ate an ong o ing relationship with J .W. and to do so withoutimpingingon the visitation ti me J ason now e njoy s. ¶ 49 Ba sed on this rec ord, it would appea r their eff orts will be critica l in assuring J .W.’s best interests will be met. ¶ 50 The trial court conscie ntiously evaluated the evidenc e but did so using a standard we no

-9-longe r believe applies. Steve bore no initial burden of proof, and the evidenc e prese nted did

not show visitation would seriously endang er J.W .’s phy sical, mental, moral, or emotional health. S teve should be permitt ed to have rea sonable visi tation, and we have briefly noted

a cautious and g radua l approa ch. The key here is the word “re asonable ”–that applies not only
to visitation but also to the mind-set of Amy
, J ason, and Steve. I f t h ey are rea sonable and
cooper ative, J.W . will prosper, a s will their relationship with her.

¶ 51 I I I . CONCLUSI ON ¶ 52 W e re v er s e the trial court’s judgme nt and rema nd the cause for the cr ea t i o n an d implementation of visitation as direc ted by the trial cour t an d i n keeping with the views expressed her ein.

¶ 53 Reverse d and re manded with dire ctions.

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