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In re Marriage of Engelkens

Case Date: 12/28/2004
Court: 3rd District Appellate
Docket No: 3-03-0842 Rel


No. 3-03-0842


IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

In re MARRIAGE OF
DONALD L. ENGELKENS, JR.,

            Petitioner-Appellant,

            and

JERRI ENGELKENS,
n/k/a Jerri Burden,

            Respondent-Appellee.

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)		 Appeal from the Circuit Court of the
Fourteenth Judicial Circuit,
Whiteside County, Illinois,


No. 98-D-024


The Honorable
Timothy Slavin,
Judge Presiding.
 
JUSTICE McDADE delivered the opinion of the court:
   

Petitioner, Donald L. Engelkens, appeals the order of the circuit court for the FourteenthJudicial Circuit, Whiteside County, Illinois, denying his request to terminate the visitation ofrespondent, Jerri L. Engelkens, n/k/a Jerri Burden, with Donald's son, Jacob Engelkens. For thereasons that follow, we reverse.

BACKGROUND

Donald and Jerri married in July 1995. In February 1998, the circuit court entered ajudgment of dissolution of the marriage. According to the judgment of dissolution and the maritalsettlement agreement incorporated therein, one child, Tommy L., was born to Jerri during themarriage. The settlement agreement stated that Donald agreed to permit Jerri a reasonableopportunity to visit Jacob Engelkens, Donald's son from a previous relationship. In November2000, Donald learned he was not Tommy's biological father. In March 2002, Donald and Jerrientered a temporary agreed order stating Jerri's visitation with Jacob was to occur every otherSaturday or Sunday between noon and 7 p.m. In March 2003 Donald petitioned the court toterminate his support for Tommy and to terminate Jerri's visitation with Jacob. The petitionargued that the statute granting visitation to stepparents had been found unconstitutional. Theissue of support was not part of the hearing below and is not part of this appeal.

In April 2003, at the hearing on the petition to terminate visitation with Jacob, only Jerritestified. Donald and Jerri lived together before they were married. Jacob came to live with themwhen he was approximately four weeks old. Jerri testified that, after the divorce andapproximately one year before the date of the hearing, she noticed marks or bruises on Jacob'sbody. The marks were on Jacob's back and appeared to have been made by a belt. Jerri made areport to the state. Jerri also noticed two bruises on Jacob's legs and knees approximately sixmonths before the hearing and a bruise by his eye. Jerri notified Jacob's school. Jerri alsotestified she had confronted Donald regarding "mental abuse" of Jacob in that when Jerri hadbought gifts for Jacob, Donald would "cut up" the item in front of him or make Jacob "cut it up." Specifically, a snowboard and a deck of "Uno" cards. Jerri testified that while the parties' divorcewas pending, Jacob lived with Jerri for a six-month period. Jerri testified she voluntarily providedJacob with health insurance continuously beginning in May 1998. Jerri never adopted Jacob. Jerri reported the suspected abuse to the state and Jacob's school, making seven reports over a 2