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FIFTH DIVISION

September 22, 2000

No. 1-99-3382

JUSTICE THEIS delivered the opinion of the court:

At issue in this case is whether the circuit court may ordervisitation between a mentally disabled adult and his estranged fatherunder the Illinois Marriage and Dissolution of Marriage Act (MarriageAct) (750 ILCS 5/101 et seq. (West 1998)). Kevin Casarotto, who wasan adult at the time the visitation order at issue was entered, has Down's syndrome. Although Kevin expressed his desire not to see hisfather, appellee Edmund Casarotto, the circuit court orderedvisitation between Kevin and his father. Appellants, Rita Casarotto,Kevin's guardian, and the office of the Cook County public guardian,which was appointed guardian ad litem, appeal from the visitationorder on Kevin's behalf, contending that the visitation provisions ofthe Marriage Act are applicable only to minor children and the circuitcourt therefore lacked subject matter jurisdiction to enter an orderof visitation as to an adult disabled person. Additionally,appellants contend it is unconstitutional to order visitation over theobjections of an adult disabled person. For the reasons that follow,we conclude that the circuit court, acting under the Marriage Act,does not have authority to enter an order of visitation with respectto a disabled adult and the order requiring visitation between Kevinand his father is therefore void for lack of subject matterjurisdiction. As a result, we do not reach the constitutional issuesraised in this appeal.

Though somewhat complex, the procedural history of this case isessential to resolution of issues raised by the parties. KevinCasarotto was born on July 29, 1975, to Rita and Edmund Casarotto. InSeptember 1993, the marriage between Rita and Edmund was dissolved. Pursuant to the judgment in dissolution of marriage, Rita was givenfull custody of Kevin and Edmund was given reasonable visitation. Atthe time the judgment of dissolution was entered, Kevin was 17 yearsold.

In September 1997, Rita was appointed as Kevin's plenary guardianand the circuit court authorized Kevin's placement in MisericordiaHeart of Mercy, where he has lived since March 1998.

In January 1998, Edmund filed a motion for modification ofvisitation alleging that he had not been able to see Kevin sinceJanuary 1, 1997, and seeking an order specifying dates and times whenvisitation would occur. On January 16, 1998, the circuit courtgranted Edmund's motion. In doing so, the court noted that visitationwith Edmund was in "the child's best interest" and that it hadjurisdiction to modify the visitation order. At the time this orderwas entered, Kevin was 22 years old.

In November 1998, Rita filed a "Second Emergency Motion toTerminate or Suspend Visitation." Although no transcript ofproceedings was included in the record on appeal, the circuit court'sNovember 17, 1998, order set forth various factual findings. Thecircuit court found that Kevin was competent to testify, that he couldarticulate his thoughts, and that his testimony was relevant andcredible. Valerie Casarotto, Kevin's 25-year-old sister, alsotestified. The circuit court found that her testimony regardingEdmund's long history of utilizing corporal punishment gavecredibility to Kevin's statements that Edmund hit him. The circuitcourt further found that Edmund exercised "extraordinarily poorjudgment" in taking Kevin on a spur-of-the-moment, out-of-state tripwhich necessitated 18 hours of driving and sleeping in the car to"teach Kevin a lesson." Accordingly, the court found "by clear andconvincing evidence" that further visitation with Edmund wouldendanger Kevin. The circuit court "suspended" all visitationincluding telephone contact and ordered that visitation

"[M]ay be reinstated only if:

a. The Court appoints a 604(b) custodyevaluator.

b. The evaluator recommends visitation bereinstated with the father.

c. The Court orders that visitation bereinstated and that the father comply with anyrecommendations made by the evaluator."

The circuit court referred to Kevin, who was 23 years old at the time,as a "dependent child."

On September 30, 1999, the circuit court reinstated visitationwithin the parameters set forth in the section 604(b) (750 ILCS5/604(b) (West 1998)) report prepared by Dr. Abigail Sivan. Thecircuit court further ordered that visitation be supervised and takeplace at Misericordia. The circuit court noted that the issue beforeit was not whether visitation was in Kevin's best interest. Rather,the court concluded that the issue was enforcement of the November 17,1998, order, which had been entered by a different judge. Accordingto the court's interpretation of that order, visitation would beallowed if Edmund met the conditions specified therein. The partiesdid not dispute that Kevin, who was 24 years old at the time the orderwas entered, expressed that he did not want to see his father, Edmund.

On appeal, Kevin contends that the circuit court lacked subjectmatter jurisdiction to enter a visitation order pursuant to theMarriage Act because he was no longer a minor at the time thevisitation order was entered. He also argues that the circuit courtcannot constitutionally order an adult disabled person to visit with aperson whom he does not wish to see.

Our supreme court recently detailed the contours of subjectmatter jurisdiction in In re Estate of Gebis, 186 Ill. 2d 188, 192-93,710 N.E.2d 385, 387 (1999):

"Subject matter jurisdiction refers to acourt's power both to adjudicate the generalquestion involved and to grant the particularrelief requested. In re M.M., 156 Ill. 2d 53, 64[, 619 N.E.2d 702, 709] (1993). Under the IllinoisConstitution of 1970, the circuit court enjoys,with limited exceptions, 'original jurisdiction ofall justiciable matters.' Ill. Const. 1970, art.VI,