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May 16, 2001

FACTS

Connor was born on September 2, 1998. In that same year,Joshua filed an action to establish paternity and requestvisitation. In January of 2000, the trial court entered an agreedorder establishing paternity and an order setting a temporaryvisitation schedule. The order gave Joshua visitation on Wednesdays, alternate Saturday mornings, one full weekend eachmonth, and certain holidays.

One year later, the parties attended a hearing regardingpermanent visitation. Joshua testified that he was employed atPeddingham Corporation in Bradley, Illinois, that he worked from 7a.m. to 3 p.m. five days a week, and that he received two weeks ofsummer vacation each year. Although he sometimes worked 12 hoursa day and 6 days a week, he never worked weekends. Joshua statedthat he lived with his parents and that he was Connor's primarycaregiver when Connor visited. Connor was given his own room andcrib at Joshua's parents' house. In the event that Joshua wasrequired to work when Connor visited, his mother and sister wereavailable to babysit. Although Connor fussed a bit when he waspicked up, he was always fine afterwards, and he never causedproblems during visitation. Joshua denied that Connor was everreturned to his mother in an unkempt condition. On eight separateoccasions, including two full weekends, Lisa refused Joshuavisitation with his son.

Lisa testified that she was employed at St. Mary's Hospital inKankakee, Illinois, as a patient care technician and that she livedwith her parents. While she was at work, her mother took care ofConnor. Lisa complained that Connor cried each time Joshua pickedhim up, that he did not receive proper care with Joshua, and thathe was returned to her in an unkempt condition. Lisa stated thatshe was willing to let Joshua make up the lost visitation, butJoshua had been uncooperative.

The trial court awarded Lisa sole custody of Connor andordered Joshua to pay child support. The court also granted Joshuavisitation per the following schedule: (a) alternate Fridays from5:30 p.m. to Sundays at 5:30 p.m.; (b) Wednesdays from 3:30 p.m. toThursdays at 6:30 a.m. until Connor reached the age of five, thenWednesdays from 3:30 to 8 p.m.; (c) alternate major holidays from9 a.m. to 5 p.m., splitting Christmas day; and (d) one week eachmonth of June, July, and August, increasing to 10 days each monthwhen Connor reached the age of five and two weeks each month whenhe turned eight. Lisa filed a motion to reconsider, claiming thecourt's order of visitation was not in Connor's best interests. The motion was denied and Lisa appealed.

ANALYSIS

Lisa argues on appeal that the trial court erred when it seta permanent visitation schedule.

This court will not disturb a trial court's decision regardingvisitation unless the decision was against the manifest weight ofthe evidence, manifestly unjust, or there was a clear abuse ofdiscretion. In re Marriage of Ivey, 261 Ill. App. 3d 200, 632N.E.2d 1121 (1994).

Lisa claims that although there is a presumption under section607(a) of the Marriage Act (750 ILCS 5/607(a) (West 1998)) thatnoncustodial parents are entitled to reasonable visitation withtheir children, there is no similar presumption for unmarriedbiological fathers under the Parentage Act (750 ILCS 45/1 et seq.(West 1998)). Thus, Joshua was required to prove, and failed toprove, that extended summer visitation was in Connor's bestinterests and that it would not be disruptive to Connor's life.

In support of her argument, Lisa cites Department of PublicAid ex rel. Gagnon-Dix v. Gagnon, 288 Ill. App. 3d 424, 680 N.E.2d509 (1997), which determined that a biological father, who soughtvisitation with his daughter with whom he had no contact for eightyears, was required to prove that visitation was in the child'sbest interests. Although Lisa claims that Gagnon stands for theproposition that under the Parentage Act there is no presumptionthat it is in a child's best interest to have visitation with abiological father, we find Lisa's interpretation of Gagnon ismisplaced. Instead, we interpret Gagnon to mean that any parent,in wedlock or out of wedlock, that seeks to establish extensivevisitation after eight years of no contact with a child has theburden to show that visitation is in the child's best interests. Absent any indication that no prior relationship existed betweenparent and child, we determine that a presumption exists in favorof biological parents for visitation.

In this case, Joshua, within the first few months after Connorwas born, filed an action seeking to establish paternity and to seta visitation schedule. Once a temporary visitation schedule wasset, Joshua and Connor visited with one another several times eachweek. Based on these factors, it is clear that the situation hereis unlike the situation in Gagnon because Joshua has been involvedin Connor's life since he was born. Accordingly, we hold thatJoshua is not required to prove that visitation is in Connor's bestinterests or to prove that visitation would not be disruptive toConnor's life.

Lisa also argues that the trial court's award of visitationwas against the manifest weight of the evidence.

The record reveals that after Connor was born the partiesentered into an agreement establishing paternity and setting atemporary visitation schedule. Joshua testified that he wasConnor's primary caregiver when Connor visited and that Connor hadhis own room and crib at Joshua's parents' house. Although Lisaclaims Connor was having problems adjusting to the visitationschedule because he fussed when Joshua picked him up, Joshuatestified that Connor was always fine afterwards and did not causeany problems during visitation. There is no evidence that the timeConnor spent with his father was disruptive or in contravention ofConnor's best interests. In fact, the record indicates that Joshuaand Connor have a positive relationship with one another. Based onthese factors, we cannot say that the trial court's visitationaward was against the manifest weight of the evidence.

[Nonpublishable material under Supreme CourtRule 23 omitted here.]

For the foregoing reasons, the judgment of the circuit courtof Kankakee County is affirmed.

Affirmed.

HOLDRIDGE and SLATER, JJ., concur.