Klak v. Skellion

741 N.E.2d 288, 317 Ill. App. 3d 1092, 251 Ill. Dec. 694, 2000 Ill. App. LEXIS 928
CourtAppellate Court of Illinois
DecidedNovember 29, 2000
Docket1-99-4423
StatusPublished
Cited by13 cases

This text of 741 N.E.2d 288 (Klak v. Skellion) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klak v. Skellion, 741 N.E.2d 288, 317 Ill. App. 3d 1092, 251 Ill. Dec. 694, 2000 Ill. App. LEXIS 928 (Ill. Ct. App. 2000).

Opinion

JUSTICE HALL

delivered the opinion of the court:

BACKGROUND

This case involves an interlocutory appeal, brought by Larry Skellion (respondent), from an order entered in the circuit court of Cook County. Mary Klak, a 17-year-old minor (petitioner), petitioned the circuit court to declare a parent-child relationship between herself and respondent pursuant to the Illinois Parentage Act of 1984 (the Act) (750 ILCS 45/1 et seq. (West 1998)). 1 The circuit court found that petitioner was entitled to pursue this legal proceeding in her own name without a parent or other guardian. The question of law presented in this appeal, as stated by the circuit court in its December 13, 1999, order is: “Whether a child under the age of 18 may file a Petition to Determine the Existence of a Parent and Child Relationship on her or his own behalf without guardian, next best friend, etc.” For the reasons that follow, we answer the circuit court’s certified question in the negative.

The following facts are relevant to this appeal. Respondent and petitioner’s biological mother, Jacqueline Klak, had an ongoing sexual relationship from 1980 to April of 1982. Petitioner was born on July 9, 1982, in Cook County, Illinois.

On August 3, 1999, petitioner filed a petition, in her name, to establish the existence of a father-child relationship between herself and respondent. Additionally, petitioner sought “funds or resources to provide for her reasonable needs, including support, maintenance, and educational expenses.” Petitioner was 17 years old when she filed her action against respondent. Petitioner is represented by counsel and no guardian ad litem has been appointed. On September 16, 1999, respondent filed his motion for involuntary dismissal pursuant to section 2 — 619 of the Code of Civil Procedure, claiming that petitioner is a minor and does not have the legal capacity to initiate a civil cause of action in her own name. 735 ILCS 5/2 — 619 (West 1998). On November 29, 1999, respondent’s motion was denied, and it was ordered that petitioner was entitled to proceed on her own behalf without a parent or other guardian. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), this court granted respondent leave to appeal. This appeal followed.

ANALYSIS

I. STANDARD OF REVIEW

On interlocutory appeal, the scope of review is limited to the question of law certified by the circuit court. Teverbaugh v. Moore, 311 Ill. App. 3d 1, 3, 724 N.E.2d 225 (2000), citing Kincaid v. Smith, 252 Ill. App. 3d 618, 623, 625 N.E.2d 750 (1993); In re Detention of Anders, 304 Ill. App. 3d 117, 120, 710 N.E.2d 475 (1999). Our review is de novo. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 480, 713 N.E.2d 543 (1999).

II. CERTIFIED QUESTION

In the instant appeal, the legal question presented raises an issue of first impression. Our research has uncovered no case in which an unemancipated child has filed a parentage action on her own behalf without a parent or other guardian. 2 The question, therefore, that concerns us is whether a child under the age of 18 may file a petition to determine the existence of a parent and child relationship on her or his own behalf without a guardian or next friend.

Respondent contends that the circuit court erred in failing to dismiss petitioner’s action because she is a minor and cannot initiate or pursue a civil action in her own name. Respondent also contends that, as a minor, petitioner must bring the action by a guardian or next friend. Petitioner contends that the Act allows a minor child to bring a paternity suit on her own behalf without a parent or other guardian. We disagree.

Initially, we note that a minor does not have the legal capacity to initiate, pursue or maintain legal action in her own name. Doe v. Montessori School, 287 Ill. App. 3d 289, 298, 687 N.E.2d 1082 (1997); Stevenson v. Hawthorne Elementary School, East St. Louis School District No. 189, 144 Ill. 2d 294, 300, 579 N.E.2d 852 (1991). A legal action may be maintained on behalf of a minor child by her parent or legal guardian. Stevenson, 144 Ill. 2d at 300, citing City of Danville v. Clark, 63 Ill. 2d 408, 411, 348 N.E.2d 844 (1976). If no parent or other guardian is available, a guardian ad litem may be appointed to represent the interests of the minor child. Stevenson, 144 Ill. 2d at 300. A minor child is a person who has not attained the age of 18 years. See 755 ILCS 5/11 — 1 (West 1998).

When interpreting a statute, the primary function is to ascertain and give effect to the true intent and meaning of the drafters. People ex rel. Department of Labor v. Soccer Enterprises, Inc., 302 Ill. App. 3d 481, 707 N.E.2d 108 (1998); Davis v. Human Rights Comm’n, 286 Ill. App. 3d 508, 676 N.E.2d 315 (1997). Statutes in derogation of the common law will be strictly construed. McMinn v. Cavanaugh, 177 Ill. App. 3d 353, 356, 532 N.E.2d 343 (1988). Common law will not be deemed abrogated by a statute unless it clearly appears that such was the legislative intent. McMinn, 177 Ill. App. 3d at 356; Cherney v. Soldinger, 299 Ill. App. 3d 1066, 1072, 702 N.E.2d 231 (1998).

Section 7 of the Act outlines the parties who may bring an action to determine a father-child relationship. Section 7 provides in relevant part:

“Determination of Father and Child Relationship; Who May Bring Action; Parties.
(a) An action to determine the existence of the father and child relationship *** may be brought by the child; the mother; a pregnant woman; any person or public agency who has custody of, or is providing or has provided financial support to, the child; *** or a man presumed or alleging himself to be the father of the child or expected child.” (Emphasis added.) 750 ILCS 45/7(a) (West 1998).

Having set out the relevant case and statutory law, we interpret the statutory language of the Act in accordance with the well-established principles of common law.

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Bluebook (online)
741 N.E.2d 288, 317 Ill. App. 3d 1092, 251 Ill. Dec. 694, 2000 Ill. App. LEXIS 928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klak-v-skellion-illappct-2000.