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Docket Nos. 97227, 97327 cons.-Agenda 19-May 2004.

In re THE PARENTAGE OF JOHN M., a Minor (Javier Valdivia v.
Maria Matias Izaguirre et al. (Maria Matias Izaguirre, Appellant;
Dennis Dean Malkowski, Appellee; Lisa Madigan, Attorney General
of the State of Illinois, Appellant)).

Opinion filed September 23, 2004.
 

CHIEF JUSTICE McMORROW delivered the opinion of thecourt:

Intervenor, Lisa Madigan, in her capacity as Attorney General ofthe State of Illinois, and defendant Maria Izaguirre⁽¹⁾ (Maria) appealdirectly to this court from an order of the Kane County circuit courtholding the Illinois Parentage Act of 1984 (the Act) (750 ILCS 45/1et seq. (West 2000)) unconstitutional and dismissing with prejudicethe "Petition to Determine a Father-Child Relationship" brought byplaintiff, Javier Valdivia (Javier), pursuant to section 7 of the Act (750ILCS 45/7 (West 2000)). The circuit court entered its ruling upon amotion brought by defendant Dennis Dean Malkowski (Dennis).

We reverse the circuit court's judgment and remand for furtherproceedings.

BACKGROUND

On May 22, 2002, Javier filed a petition in the circuit court ofKane County, pursuant to section 7 of the Illinois Parentage Act,asking the court to determine the existence of a father-childrelationship between himself and John M. (Baby John), a child born toMaria on August 31, 2001. Javier alleged in the petition that he isBaby John's biological father, that he has visited Baby John sinceBaby John's birth, and that he is willing and able to provide financialsupport for Baby John. Javier asked the court to issue an orderestablishing his paternity. Javier also asked the court to determine hischild support obligation and to set a reasonable visitation schedule.

Dennis was married to Maria at the time of Baby John's birthand, thus, is Baby John's presumed father pursuant to section 5(a)(1)of the Act (750 ILCS 45/5(a)(1) (West 2002)). In response to Javier'spetition, Dennis asked the court to stay all proceedings, including anygenetic testing, pending the appointment of a guardian ad litem forBaby John. Dennis then moved for the involuntary dismissal ofJavier's petition. In support of the dismissal motion, Dennis presentedthree arguments. First, Dennis argued that the Illinois Parentage Act,"as applied to this case," is unconstitutional because it allows a"stranger" to attack the legitimacy of a child. Citing to the UnitedStates Supreme Court case Michael H. v. Gerald D., 491 U.S. 110,105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989), Dennis contended thatIllinois law, "as utilized by the plaintiff[,] is an attempt by the plaintiffto intercede into the sacred family unit of a husband, wife and childborn during the marriage." Dennis further alleged:

"[T]o the extent that Illinois law creates the possibility that achild can have two fathers, the child is denied due process oflaw and the equal protection of law guaranteed by theConstitutions of the United States of America and the Stateof Illinois."

In Dennis' second argument, under the heading "Best Interests,"Dennis contended:

"Prior to granting any relief prayed for by the plaintiff,Illinois should require that there be a best interests hearing todetermine if it is in the best interest that there be any geneticparentage testing at all and whatsoever. The superior rightsof marriage, and a child born to a married couple, should beconsidered prior to letting a stranger conduct a legal andscientific incursion into the lives of a mother, father, andinfant child, which will permanently and adversely effect [sic]each of them." (Emphasis added.)

Dennis then concluded:

"Basic and fundamental fairness, constitutional guarantees ofequal protection of law and due process of law demand thatthis court hold a hearing to determine the best interest of theminor child as to whether or not a parentage issue should orcan be raised by any person other than the natural mother'shusband before allowing any further proceedings hereinwhatsoever."

In his third argument, Dennis challenged Javier's standing tobring the petition to establish a parent-child relationship. Dennisargued that Javier did not have standing because Dennis and Mariawere married at the time that Baby John was born and there wasevidence (apparently Dennis' attached affidavit) that Dennis wasneither sterile nor impotent, and that Dennis and Maria engaged in"conjugal contact" around the time that Baby John was conceived. Noauthority was cited for this "lack of standing" argument.

Dennis submitted an affidavit in support of his dismissal motion.In the affidavit⁽²⁾ Dennis asserted that he and Maria were married onDecember 19, 1997, that they have not divorced, and that no suit todissolve the marriage had been filed. In the course of this marriage,Maria gave birth to a son, Baby John, on August 31, 2001. Dennis isnamed as Baby John's father on Baby John's birth certificate. Dennisfurther asserted that he is neither impotent nor sterile and that he andMaria engaged in sexual intercourse around the time of Baby John'sconception.

Dennis stated that, shortly after Baby John's birth, in October orNovember of 2001⁽³⁾, Javier took Baby John to live with him. Mariaand her nine-year-old daughter, Betzaida Izaguirre, also began livingwith Javier at that time. About four months later, however, Maria andthe children returned to Dennis' residence. According to Dennis, whenMaria returned, she said that she began living with Javier to protectBaby John; that Javier held her against her will; and that she and thechildren had been required to live in a basement, where it was dampand cold. Dennis further stated that Maria and the children left themarital residence again on June 17, 2002 (the date of the first courthearing on Javier's petition). When Dennis went to court, hediscovered that Maria and the children were with Javier. Maria refusedto speak with Dennis. Moreover, when Dennis returned home afterthe court hearing, he found that Maria's and the children's belongingshad been removed from his premises. According to the affidavit,Maria and the children have been living with Javier since that time.

Maria, represented by Prairie State Legal Services, Inc., enteredan appearance on June 27, 2003. The record contains no pleadings byMaria in response to Javier's petition.⁽⁴⁾

In December 2002, a guardian ad litem was appointed for BabyJohn. Thereafter, on April 8, 2003, the court held a hearing onDennis' motion to dismiss. The court heard no witness testimony andreceived no documentary evidence. Javier, Maria, Dennis and BabyJohn were each represented by counsel, who presented arguments tothe circuit court. After hearing these arguments, the court ruled asfollows:

"Okay. It seems to me that several factors of this statuteare problematic.

First of all, I think there were presumptions or an objectiveor a consideration in society that marriage in a family hassome sanctity and that that is a basis for our statutes, ourgovernment and much else of what we do in government andsociety.

Secondly, although it is present in this case, the absence ofany time limit herein which is this time limit could come intoplace [sic] I see as a problem and I agree with Mr. Peskind[defense counsel] and I agree with Ms. Kostelney [guardianad litem] and all of the cases that say that we have toconsider the best interest of the child in determining thecustody, matter of visitation and any adoption situations ofparentage or termination of parentage.

And so I am going to find the statute unconstitutional. Itis I think, too, violates some of the basic tenants [sic] of oursociety. I think the presumption of the paternity is of thehusband in this case. Certainly, there is no divorce, no legalseparation or no court orders in effect ending that maritalrelationship.

And I don't think that we can, I don't think the statute isclear enough to rely on it."

The court's written order contains two findings:

"1. That 750 ILCS 45/1 et seq. [the Parentage Act] andspecifically 750 ILCS 45/7 [section 7] is unconstitutional andviolates the constitutional rights of due process and equalprotection of law guaranteed and applied to DennisMalkowski and Baby John as provided for in the Constitutionof the United States of America, Fourteenth Amendment andthe Illinois Constitution.

2. The Court also finds that the statute is faciallyunconstitutional in that it fails to allow a court to determinebest interests of children in considering petitions broughtunder 750 ILCS 45/7."

The court dismissed Javier's petition with prejudice.

Having declared the Parentage Act unconstitutional, the courtsent notice to the Illinois Attorney General pursuant to SupremeCourt Rule 19. On May 30, 2003, Lisa Madigan, as Attorney Generalof the State of Illinois, filed a petition to intervene, which the courtgranted, and on September 2, 2003, the Attorney General submitteda memorandum of law in support of the constitutionality of the Act.

Javier filed a motion for reconsideration in which he attacked thecircuit court's finding of unconstitutionality. In this motion, Javierargued that the circuit court's reasoning in finding the Parentage Actunconstitutional, i.e., the sanctity of marriage and the societalimportance of preserving that unity, failed to take into considerationthe facts of this case. Javier pointed out that, although Maria andDennis were legally married when Baby John was born, they had notbeen living together as man and wife; that Javier and Maria had anongoing relationship that began in January 2000; and that Maria andBaby John have been living with Javier since October 2001. Javierargued that, in accordance with the statute, he was entitled to establishhis paternity. Once paternity was established, a best interests hearingcould be held, in accordance with section 14 of the Act (see 750 ILCS45/14 (West 2002)), before determining what rights he should beafforded. Javier also filed with the court a DNA Parentage TestReport showing a 99.99997% probability of his paternity to BabyJohn.

Maria moved to vacate the circuit court's order finding theParentage Act unconstitutional and dismissing Javier's petition. Maria,like Javier, argued that the court's finding of unconstitutionality wasimproperly premised on assumptions derived from the unsubstantiatedassertions contained in Dennis' motion and affidavit. Mariacontradicted several of Dennis' assertions in her own affidavit, whichshe attached to her motion.

In her affidavit, Maria asserted that she had obtained a plenaryorder of protection against Dennis in November 2000 because Dennishad been abusive to her during the marriage. The order of protectiongranted Maria exclusive possession of one bedroom in the maritalhome and prohibited Dennis from physically abusing her, harassingher, or interfering with her personal liberty. Maria further alleged thatshe did not have sexual relations with her husband since beforeNovember 2000. Moreover, Maria claimed that, in March 2001,Dennis tried to force her to have an abortion after she told him thatshe was pregnant and that he was not the father. In addition, Mariaasserted that, in September 2001, after Baby John was born, Dennislocked her and her children out of the marital residence and would notallow them to return until sometime in October 2001.

Maria alleged in her affidavit that she and the children resided inthe marital home from October 2001 until June 2002, when she leftDennis, taking the children with her, because Dennis was threateningher life and she was concerned for her own safety. Maria stated thatshe rented a room in Javier's mother's home and she continues toreside there with her children.

Maria admitted that Dennis is listed as Baby John's father onBaby John's birth certificate but claimed this was because hospitalpersonnel never asked her to identify the child's father before enteringthe information. Maria further alleged that Dennis has shown littleinterest in Baby John since his birth, that Dennis has seen Baby Johnon only two occasions since June 2002, that Dennis did not visit BabyJohn in the hospital when he was sick, and that Dennis has not assistedin Baby John's care or provided any financial support for her or thechildren since June 2002.

In contrast, Maria stated that Javier accompanied her on herdoctor visits during the pregnancy, visited Baby John frequently in thehospital when he was sick, has seen Baby John daily since June 2002,and has been providing financial support for Baby John since his birth.Maria averred, too, that she had her own insurance, provided by heremployer, which covered most of the medical expenses incurredduring her pregnancy.

On October 2, 2003, the court held a hearing with regard to themotions filed in opposition to its April 8, 2003, order. Again, noevidence was taken. The court heard arguments of counsel and thenentered its ruling. The entirety of its judgment is as follows:

"Having heard all of the arguments and reviewed theconsiderations that went into my first-my initial ruling in thiscase, I have reconsidered it and I'm going to deny therequested relief. The original ruling will stand.

I believe today was the first time in this case we'veallowed to-or heard anything about any facts; and I thinkbased on the law and public policy on which my decision wasoriginally made, I believe that this statute as written isunconstitutional."

An order denying all postjudgment motions was issued.

Pursuant to Supreme Court Rule 302(a), appeal was broughtdirectly to this court by the Attorney General and by Maria Izaguirre.134 Ill. 2d R. 302(a). The two appeals have been consolidated byorder of this court.

ANALYSIS

At issue in the case at bar is the constitutionality of the IllinoisParentage Act of 1984 (750 ILCS 45/1 et seq. (West 2002)), thestatutory scheme which governs proceedings to determine paternity.Our Act is derived from the Uniform Parentage Act of 1973, 9BU.L.A. 287 (1987). In re Marriage of Slayton, 277 Ill. App. 3d 574(1996). Its purpose is to further the public policy of Illinois to"recognize[ ] the right of every child to the physical, mental,emotional and monetary support of his or her parents," without regardto the parents' marital status. 750 ILCS 45/1.1, 3 (West 2002).

Under the Act, a father-child relationship may be established bypresumption (750 ILCS 45/5(a) (West 2002)), by consent (750 ILCS45/6 (West 2002)), or by judicial determination (750 ILCS 45/7 (West2002)). The Act recognizes four situations which will give rise to apresumptive father-child relationship. The one pertinent to the case atbar is found in section 5(a)(1) and provides that a man is presumed tobe the natural father of a child if "he and the child's natural mother areor have been married to each other, even though the marriage is orcould be declared invalid, and the child is born or conceived duringsuch marriage." 750 ILCS 45/5(a)(1) (West 2002). Although two ofthe four presumptions found in section 5(a) are "conclusive," thepresumption in section 5(a)(1) is rebuttable by clear and convincingevidence. 750 ILCS 45/5(b) (West 2002).

Legal determinations regarding the father-child relationship aregoverned by section 7 of the Act (750 ILCS 45/7 (West 2002)). Afather-child relationship may be established pursuant to section 7(a),or disestablished pursuant to sections 7(b) and 7(b.5). Section 7(a)permits various parties to bring an action to establish a child'spaternity, without regard to whether parentage is presumed undersection 5(a). Section 7(a) provides in pertinent part:

"An action to determine the existence of the father andchild relationship, whether or not such a relationship isalready presumed under Section 5 of this Act [750 ILCS45/5], may be brought by the child; the mother; a pregnantwoman; any person or public agency who has custody of, oris providing or has provided financial support to, the child;the Illinois Department of Public Aid if it is providing or hasprovided financial support to the child or if it is assisting withchild support collection services; or a man presumed oralleging himself to be the father of the child or expectedchild." (Emphases added.) 750 ILCS 45/7(a) (West 2002).

Thus a man alleging himself to be the biological father of a childhas standing to bring an action to establish his relationship to the child,without regard to whether another man is already presumed to be thechild's father pursuant to section 5(a) of the Act. Moreover, once apetition to establish parentage is filed with the court, the court,pursuant to section 11(a) of the Act, "may, and upon request of aparty shall, order or direct the mother, child and alleged father tosubmit to deoxyribonucleic acid (DNA) tests to determine inheritedcharacteristics." (Emphasis added.) 750 ILCS 45/11(a) (West 2002).If the results of paternity testing obtained pursuant to this sectionshow that the presumed father is not the biological father, thepresumption in section 5 is rebutted. 750 ILCS 45/11(g) (West 2002).

Although the Act contains no express requirement that a courtconsider the best interests of the child before any testing is conductedor a legal determination of paternity is made (see In re Marriage ofSlayton, 277 Ill. App. 3d at 577), section 14 of the Act provides thatany decisions regarding custody and visitation "shall [be] determine[d]in accordance with the relevant factors set forth in the IllinoisMarriage and Dissolution of Marriage Act [750 ILCS 5/101 et seq.]and any other applicable law of Illinois, to guide the court in a findingin the best interests of the child." 750 ILCS 45/14 (West 2002). Thus,even though paternity may be established upon the filing of a petitionpursuant to section 7(a), any parental rights of the biological father,such as the right to have custody of, or visitation with, the child, shallnot be granted unless it is in the child's best interest.

In the case at bar, Javier, relying on the statutory right grantedhim in section 7(a) of the Act, filed a petition in the circuit court ofKane County, seeking a judicial determination of his paternity to BabyJohn. Dennis, as Baby John's presumed father, sought to bar Javierfrom establishing his paternity. Dennis argued that the Act, bypermitting a putative father to rebut the presumption of paternityrecognized in section 5(a)(1) of the Act, unconstitutionally infringesupon his rights and the rights of the family. This is so, Dennis argued,because the Act makes no provision for a best interests hearing priorto the paternity determination.

Agreeing with Dennis, the circuit court dismissed Javier's petitionwith prejudice. The court made two specific rulings: (1) that thestatute violates due process and equal protection rights "guaranteedand applied to Dennis Malkowski and Baby John" and (2) that "thestatute is facially unconstitutional in that it fails to allow a court todetermine best interests of children in considering petitions broughtunder 750 ILCS 45/7."

The circuit court's judgment is before us on direct review.Because a statute's constitutional validity is a question of law, wereview de novo the circuit court's decision declaring the statuteunconstitutional. Arvia v. Madigan, 209 Ill. 2d 520, 536 (2004);People v. Einoder, 209 Ill. 2d 443, 450 (2004). When considering theconstitutionality of a statute on review, we begin with the presumptionthat the statute is constitutional. People v. Huddleston, No. 96367(June 4, 2004); Vuagniaux v. Department of Professional Regulation,208 Ill. 2d 173 (2003). Further, we have an obligation to construe thestatute in a manner which upholds its constitutionality, if such aconstruction is reasonably possible. Wickham v. Byrne, 199 Ill. 2d309, 316 (2002). The burden of clearly establishing the statute'sconstitutional infirmity is on the party challenging the validity of astatute. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 290 (2003).

Our task of reviewing the circuit court's judgment in the case atbar is hampered by a lack of clarity in the court's ruling. The scope ofthe ruling is not readily apparent from the text of the order. The courtdeclared the statute unconstitutional, apparently invalidating theParentage Act in its entirety, rather than some portion thereof. Inaddition, the circuit court used the terms "as applied" and "facially"when finding the statute unconstitutional, making it unclear whetherthe court intended to find the Act, either in whole or in part,unconstitutional "as applied" or "on its face" or both. Moreimportantly, however, the court's "findings" that the Act violates dueprocess and equal protection are conclusory and unsupported by anylegal analysis or explanation. The circuit court never engaged in anyof the traditional analyses associated with due process and equalprotection claims.

This court noted in In re R.C., 195 Ill. 2d 291, 302-03 (2001),that there are general procedures that courts follow when addressingdue process challenges:

"The analysis courts use when confronted with a claim thata statute violates the due process guarantees of the UnitedStates and Illinois Constitutions depends on the nature of theright upon which the statute supposedly infringes. Ordinarily,courts will employ a relaxed scrutiny of statutes, looking onlyto see whether the statute bears a rational relationship to alegitimate state interest. [Citation.] However, in cases wherethe right infringed upon is among those considered a'fundamental' constitutional right, courts subject the statuteto 'strict' scrutiny. To survive strict scrutiny, the meansemployed by the legislature must be 'necessary' to a'compelling' state interest, and the statute must be narrowlytailored thereto, i.e., the legislature must use the leastrestrictive means consistent with the attainment of its goal."

Similarly, there are analytical procedures which are typicallyfollowed when an equal protection challenge is made. In City ofUrbana v. Andrew N.B., Nos. 95408, 95803 cons. (June 24, 2004),we explained:

"Equal protection guarantees that similarly situatedindividuals will be treated similarly, unless the governmentdemonstrates an appropriate reason to do otherwise.[Citation.] The shorthand we have developed for the degreeof deference we give in evaluating the appropriateness ofsuch a reason is the term 'scrutiny.' In cases like the onebefore us, where the statutory classification at issue does notinvolve fundamental rights, we employ so-called rationalbasis scrutiny and ask only whether the challengedclassification bears a rational relation to a legitimatepurpose."

Although any substantive due process analysis must begin witha careful description of the asserted right (see Reno v. Flores, 507U.S. 292, 302, 123 L. Ed. 2d 1, 16, 113 S. Ct. 1439, 1447 (1993)),the court, in the case at bar, never identified the nature of the rightpurportedly infringed upon by the statute, nor did the court, withregard to the equal protection challenge, identify which individual orclass of individuals was being treated differently than others similarlysituated. Efforts by the Attorney General and Maria, in theirpostdismissal motions and memorandums of law, to inject traditionalconstitutional due process and equal protection analysis into theproceedings were summarily rejected by the circuit court. As aconsequence, our task, initially, is to define the parameters of thecircuit court's holdings.

A. Whether the Parentage Act Violates Due Process and EqualProtection Rights "Guaranteed and Applied" to Dennis and BabyJohn

The circuit court's first ruling is that the Parentage Act violatesdue process and equal protection rights "guaranteed and applied" toDennis and Baby John. Because the court makes specific reference toDennis and Baby John, we logically conclude that the circuit courtintended by this ruling to find the Parentage Act unconstitutional "asapplied" to the parties in the case before us. This being so, we neednot review the court's ruling on its merits. Because the circuit courtnever held an evidentiary hearing and made no findings of fact, itcould not have found the Act unconstitutional as applied to Dennisand Baby John.

A court is not capable of making an "as applied" determinationof unconstitutionality when there has been no evidentiary hearing andno findings of fact. Reno v. Flores, 507 U.S. at 300-01, 123 L. Ed. 2dat 15-16, 113 S. Ct. at 1446 (when there are no findings or evidentiaryrecord, the constitutional challenge must be facial). Without anevidentiary record, any finding that a statute is unconstitutional "asapplied" is premature. See In re R.C., 195 Ill. 2d 291, 299-300(2001); see also Desnick v. Department of Professional Regulation,171 Ill. 2d 510, 555-56 (1996) (McMorrow, dissenting) (reaching themerits of a constitutional "as applied" challenge without thepresentment or circuit court consideration of any evidence createsconstitutional due process concerns). Nor would it be appropriate forthis court, sua sponte, to consider whether the statute has beenconstitutionally applied since we, as a reviewing court, are not arbitersof the facts. Accordingly, we reverse the circuit court's first ruling.We are limited, therefore, to a review of the Act's facial validity.

B. Whether the Parentage Act Is Facially UnconstitutionalBecause It Does Not Require a Best Interests Hearing Prior to aFinding of Paternity

At the outset, we note that a facial challenge to theconstitutionality of a statute is the most difficult challenge to mountsuccessfully. In re C.E., 161 Ill. 2d 200, 210-11 (1994). This isbecause a statute is facially invalid only if no set of circumstances existunder which the Act would be valid. United States v. Salerno, 481U.S. 739, 745, 95 L. Ed. 2d 697, 707, 107 S. Ct. 2095, 2100 (1987).The fact that the statute could be found unconstitutional under someset of circumstances does not establish the facial invalidity of thestatute. See Village of Hoffman Estates v. Flipside, Hoffman Estates,Inc., 455 U.S. 489, 504, 71 L. Ed. 2d 362, 375, 102 S. Ct. 1186,1196 (1982) (" 'Although it is possible that specific future applications... may engender concrete problems of constitutional dimension, it willbe time enough to consider any such problems when they arise' "),quoting Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35,52, 16 L. Ed. 2d 336, 348, 86 S. Ct. 1254, 1265 (1966). With thisstandard in mind, we turn to the circuit court's second ruling, that "thestatute is facially unconstitutional in that it fails to allow a court todetermine best interests of children in considering petitions broughtunder 750 ILCS 45/7."

Interpreting the circuit court's order literally, the circuit courtinvalidated the Parentage Act because section 7 of the Act allows"petitions" to be brought without a prior best interests hearing. Asnoted earlier, however, section 7 governs petitions brought toestablish paternity, as well as actions to disestablish paternity. Inaddition, section 7(a), which permits petitions to establish paternity,affords standing to a number of individuals and entities in addition toputative fathers and encompasses situations where the child's motherwas not married and, therefore, there is no presumed father.Accordingly, section 7 embraces a multitude of situations which werenot under consideration by the circuit court at the time of its ruling.Thus, we think a more reasonable interpretation of the circuit court'sorder is one that limits the reach of the circuit court's finding ofunconstitutionality to the narrow circumstances that were before it.Therefore, we interpret the circuit court order to mean that section7(a) of the Act is facially invalid to the extent that it permits, withouta prior best interests hearing, a paternity action brought by a manalleging himself to be the biological father of a child who was bornduring the marriage of the mother to another man. Even with thisnarrow interpretation of the circuit court's ruling, however, we areunable to affirm the court's finding that the Parentage Act is faciallyinvalid.

The circuit court declared the Parentage Act faciallyunconstitutional because it does not provide for a best interestshearing before allowing a paternity action to proceed. However,neither the circuit court's order, nor its verbal rulings, provided anyexplanation why, even under the limited circumstances set forthabove, the failure to hold a preliminary best interests hearing would,in all cases, render the statute unconstitutional. Indeed, the courtnever stated whether the statute's invalidity stems from a violation offederal or state constitutional principles and we are left to wonderwhat constitutional provision the court applied here to find the Actinvalid.

Additionally, the court never identified the party whose rights orinterests it found were being infringed by the lack of a best interestshearing. Generally, when a best interests hearing is required prior tosome action, it is for the protection of the child. Here, however, thechallenge to the constitutionality of the Act was raised by thepresumed father. The court never explained why a presumed father,when attempting to assert his own rights under the Act, has standingto challenge the Act on the grounds that it is against the child's bestinterests. This is an issue that has been considered in other courts. SeeIn re Marriage of Thier, 67 Wash. App. 940, 945, 841 P.2d 794, 797(1992) (the best interests of the child "standard cannot be invoked onbehalf of someone other than the child' " (emphasis omitted)), quotingMcDaniels v. Carlson, 108 Wash. 2d 299, 310, 738 P.2d 254, 261(1987).

Finding no explanation for the circuit court's holding that apreliminary best interests hearing is constitutionally required, we turnto the arguments presented by the appellee, Dennis, who is the partywho challenged the constitutionality of the statute in the court below.As noted earlier, the party challenging the constitutionality of a statutebears the burden of clearly establishing its unconstitutionality. In reCurtis B., 203 Ill. 2d 53, 58 (2002).

In his brief before this court, Dennis argues that, by not providingfor a preliminary best interests hearing, the statute is unconstitutionalbecause it permits the "automatic invasion of an intact family by astranger" and "allows an interloper to involuntarily invade the maritalrelationship and impugn its integrity." He claims the statutory schemeworks a hardship on children "raised by a [presumed] father," whom"they considered their father." Similarly, in the court below, Dennisargued that the statute is unconstitutional because a 10-year-old child,living with the husband and wife, raised by the husband as his child,could be displaced by a biological father who is a stranger, but "comesin ten years later *** and says I want a cotton swab, I'm the dad."Dennis also posited that there could be a situation where the child ofthe biological father seeking to establish paternity was a product ofrape.

The very wording of Dennis' arguments, however, demonstratesthe failure of proof as to the statute's facial validity. In advancing hisarguments, Dennis makes numerous assumptions or suggests varioushypothetical situations wherein the statute might be appliedunconstitutionally. Without expressing any opinion on theconstitutionality of the statute in the circumstances suggested byDennis, we find that Dennis fails to carry his burden of clearlyshowing that, in all instances, the failure to hold a best interestshearing before allowing a paternity action to proceed would beunconstitutional. In particular, Dennis has not shown why it would beunconstitutional to allow a paternity action to proceed without a bestinterest hearing in a situation where the biological father has beenliving with the child or where the marriage between the child's motherand the presumed father has already disintegrated so that there is no"intact family." Thus, Dennis' arguments do not support the circuitcourt's holding that the statute is facially invalid.

In addition to the above arguments, Dennis urges this court toaffirm the circuit court's ruling by discussing "Family Law Trends"and public policy considerations. He suggests that the inability ofcourts to consider the best interests of children before determiningparentage is "lamentable" and that a court "should" have this ability.He cites the special concurring opinions in J.S.A. v. M.H., 343 Ill.App. 3d 217 (2003), which emphasize the importance of allowingcourts to consider children's best interests when making paternitydeterminations. He suggests that our Parentage Act overemphasizesthe biological connection and is out of step with current realities.Dennis concludes: "Not only is the statutory scheme here arguablyunconstitutional, sociologically and scientifically it is no longerappropriate as evidenced by trends in family law." (Emphasis added.)

The trends and policy considerations provided by Dennis are notauthority which would support a finding that the statutory scheme atissue here is facially unconstitutional. Further, Dennis argues theinvalidity of the statute by stating only that it is "arguably"unconstitutional. Dennis' arguments show, at best, a disagreementwith the wisdom of our current legislative scheme. As this court heldin Hayen v. County of Ogle, 101 Ill. 2d 413, 420-21 (1984), whereobjections "pose what are essentially questions of policy [they] aremore appropriately directed to the legislature than to this court."When assessing the constitutionality of a statute " 'we do not sit as asuperlegislature to weigh the wisdom of legislation nor to decidewhether the policy which it expresses offends the public welfare.' "Hayen v. County of Ogle, 101 Ill. 2d at 421, quoting Day-BriteLighting, Inc. v. Missouri, 342 U.S. 421, 423, 96 L. Ed. 469, 472, 72S. Ct. 405, 407 (1952). See also Smith v. Board of Education ofOswego Community High School District, 405 Ill. 143, 147 (1950)("The wisdom of *** legislation is a question for the GeneralAssembly and not for this court. It is our function to determinewhether the legislation is forbidden by the constitution).

The burden of clearly showing the facial invalidity of theParentage Act has not been met. For this reason, we reverse thecircuit court's judgment that the Parentage Act is faciallyunconstitutional because section 7(a) of the Act makes no provisionfor a best interests hearing before allowing a paternity action toproceed.

Having found that the statute is not unconstitutional, we reversethe dismissal of Javier's petition and remand for further proceedings.

CONCLUSION

For the forgoing reasons, the judgment of the circuit court isreversed and the cause is remanded to that court.

Reversed and remanded.

1. Maria is married to Dennis Malkowski and identifies herself in her brief as Maria Malkowski, not Maria Izaguirre.

2. Some of the matters asserted in the affidavit were repeated in a "Background" section of the motion for involuntary dismissal.

3. Although the affidavit and motion were filed on the same day, the motion states that Baby John was taken from the marital residence in October, while the affidavit states that Baby John was taken in November.

4. Although Maria did not respond to Javier