Robinson v. Reif

2014 IL App (4th) 140244

Opinion

FILED 2014 IL App (4th) 140244 November 24, 2014 Carla Bender NO. 4-14-0244 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PAUL W. ROBINSON and LINETTE R. ROBINSON, ) Appeal from Plaintiffs-Appellees, ) Circuit Court of v. ) Macon County ANDREW REIF, ) No. 11F427 Defendant-Appellant. ) ) Honorable ) James R. Coryell, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Turner concurred in the judgment and opinion.

OPINION

¶1 In March 2010, a car accident killed 22-year-old Casey Robinson-Reif and left

her husband, defendant, Andrew Reif, severely injured and in need of prolonged hospitalization

and rehabilitation. For 18 months thereafter, the couple's minor children, G.R. (born October 10,

2007) and E.R. (born August 5, 2009), lived with their maternal grandparents, Paul W. Robinson

and Linette R. Robinson (collectively, plaintiffs). In August 2011, defendant—now recovered

and remarried—successfully regained custody of his children after a contentious court battle.

Defendant and his new wife moved with the children to New Mexico, cutting off all contact with

plaintiffs.

¶2 In September 2011, plaintiffs filed a verified petition for permanent and temporary grandparent visitation pursuant to section 607(a-5) of the Illinois Marriage and

Dissolution of Marriage Act (commonly known as the grandparent visitation statute) (750 ILCS

5/607(a-5) (West 2010)). In March 2014, following a November 2013 hearing, the trial court

granted plaintiffs' petition and set a visitation schedule.

¶3 Defendant appeals, arguing that (1) plaintiffs lacked standing under section 607(a-

5)(1) of the Act (750 ILCS 5/607(a-5)(1) (West 2010)) because defendant did not unreasonably

deny visitation and (2) the trial court's judgment was against the manifest weight of the evidence

because plaintiffs failed to rebut the statutory presumption that defendant's actions and decisions

regarding grandparent visitation were not harmful to the children's mental, physical, or emotional

health. We disagree and affirm.

¶4 I. BACKGROUND

¶5 The following facts were gleaned from the parties' pleadings and other supporting

documents filed with the trial court, as well as the evidence presented at the November 2013

hearing on plaintiffs' petition.

¶6 A. Events Preceding Plaintiffs' Petition

¶7 In December 2006, defendant and Casey married in Decatur. In February 2007,

Casey moved to El Paso, Texas, to live with defendant, who was stationed at the Army base at

Fort Bliss. G.R. and E.R. were both born on the base. In March 2010, the family decided that

Casey and the two children would move back to Illinois. During the drive to Illinois, the family's

car—driven by defendant—was involved in a rollover accident, which resulted in Casey's death

and severe injuries to defendant. The children, who were uninjured, lived the next 18 months

with plaintiffs in Decatur while defendant recovered. After defendant recovered and remarried,

-2- plaintiffs sought to keep custody of the children. The court battle for custody, which defendant

ultimately won, caused seemingly irreparable damage to plaintiffs' relationship with defendant.

Once defendant settled in New Mexico with his new wife and the children, he ignored plaintiffs'

repeated attempts to contact him, eventually changing his phone number.

¶8 B. Plaintiffs' September 2011 Petition

¶9 In September 2011, plaintiffs filed their petition for grandparent visitation

pursuant to section 607(a-5) of the Act, seeking a permanent visitation order. The petition

alleged, in pertinent part, that (1) defendant cut off contact with plaintiffs and unreasonably

denied plaintiffs visitation with the children; (2) the children developed significant mental and

emotional bonds with plaintiffs; (3) defendant's termination of plaintiffs' relationship with the

children was not in good faith; and (4) the termination of plaintiffs' relationship with the children

had caused, and will continue to cause, the children to suffer mentally and emotionally.

Plaintiffs' petition set forth 25 specific factual allegations to illustrate the bonds that had formed

between plaintiffs and the children. (For example, plaintiffs alleged that "[t]he minor children

enjoyed riding their bikes and planting flowers with [plaintiffs,]" and "[E.R.] sometimes called

Grandmother, 'Mommy.' ")

¶ 10 While plaintiffs' petition was pending, the trial court allowed (1) weekly phone

calls between plaintiffs and the children, (2) three personal visits in the Texas/New Mexico area,

and (3) one personal visit in Decatur, which required plaintiffs to make two round-trip flights to

El Paso to retrieve and drop off the children.

¶ 11 C. The November 2013 Hearing on Plaintiffs' Petition

¶ 12 In November 2013, after more than two years of continuances, the trial court held

-3- a hearing on plaintiffs' petition, at which the parties presented the following evidence.

¶ 13 1. Plaintiffs' Evidence

¶ 14 a. Linette's Testimony

¶ 15 Linette (born August 1969) testified that she and Paul (born June 1971) had been

married for 20 years. Linette is employed as a clinical pharmacy technician and Paul is a

trucking supervisor for Archer Daniels Midland Company. Prior to Casey's death, plaintiffs

were very close with defendant and the children. The parties would visit each other in El Paso

and Decatur and make regular phone calls on holidays and birthdays.

¶ 16 At 4:45 a.m. on March 12, 2010, police called plaintiffs' home to inform them that

defendant, Casey, and the children had been in a rollover accident on Interstate 40 near

Tucumcari, New Mexico. After plaintiffs pleaded for more information, the officer revealed that

Casey had died. The children were fine, but defendant had been airlifted in critical condition to

Amarillo, Texas, and the local authorities would be placing the children in foster care for the

time being. Within a half hour, plaintiffs were on the road making the 15-hour drive from

Decatur to Amarillo to retrieve the children. Plaintiffs spent three days in Texas before returning

to Decatur. During that time, they visited defendant in the hospital and purchased baby formula

for E.R., who had until then been nursing from Casey.

¶ 17 Defendant suffered serious brain injuries in the accident, which required him to be

placed in a medically induced coma for two weeks. For the next several months, while

defendant was hospitalized in Amarillo and Chicago, G.R. would regularly ask plaintiffs where

his mother was. Plaintiffs would explain that she had gone to heaven and that they missed her

too. Plaintiffs traveled with the children to the hospital in Amarillo to visit defendant for Easter,

-4- then to the hospital in Chicago several times to visit defendant while he was in rehabilitation.

Following his hospitalization in Chicago, defendant spent May and June living in plaintiffs'

home. At the end of June, the Army recalled defendant to Fort Bliss. According to Linette,

defendant wanted the children to remain in Decatur with plaintiffs because plaintiffs "were doing

a great job with [the children] and [defendant] felt comfortable to leave them."

¶ 18 Plaintiffs assumed complete care and parenting responsibilities for the children

during the 18 months following the car accident. This included feeding, toilet training, arranging

day care, throwing birthday parties, traveling to visit extended family, and taking the children to

activities such as pottery classes, festivals, children's museums, and the zoo.

¶ 19 When defendant was living with plaintiffs during his recovery, he contributed

little to basic parenting duties, such as changing diapers or feeding the children. Linette stated

that defendant would "come and go all hours of the day and night," and "he didn't interact with

[the children] a whole lot." In late 2010 and the early months of 2011, after defendant had

returned to Fort Bliss, Linette noticed a change in defendant's mood. Specifically, defendant

became "threatening" to plaintiffs and showed signs of depression, hallucinations, forgetfulness,

and suicidal thoughts. (Linette gleaned much of this information from defendant's Facebook

page.) In late January 2011, defendant told plaintiffs that he was in a relationship and he

intended to take the children with him to Texas. Linette told defendant, who was living in the

Fort Bliss barracks at the time, that she was not comfortable giving the children to him.

¶ 20 In February 2011, defendant married his second wife, Tiffany. Shortly thereafter,

plaintiffs filed for an emergency order of protection against defendant, which the trial court

granted. However, plaintiffs soon dropped the emergency order of protection and instead filed a

-5- renewed petition for temporary guardianship, which the court also granted. (The record before

us does not contain any pleadings or other court documents from the proceedings on the

emergency order of protection or the petitions for temporary guardianship.)

¶ 21 After the trial court granted plaintiffs' renewed petition for temporary

guardianship in March 2011, the litigation over custody of the children continued, with plaintiffs

taking the position that defendant was not competent to care for the children. In August 2011,

after defendant took a court-ordered mental evaluation, the trial court returned the children to

defendant's custody. Linette testified that the children were upset and crying when they learned

that they would be returned to defendant. After defendant took custody of the children, all his

communication with plaintiffs ceased.

¶ 22 At the four visits during the pendency of plaintiffs' petition for grandparent

visitation, the children were very excited to see plaintiffs. During the Decatur visit in May 2012,

defendant's parents (who also lived in Decatur) came to plaintiffs' home to visit with the

children. The children slept in their old bedrooms, which plaintiffs had preserved for them. The

children were upset when it came time to return to El Paso.

¶ 23 At the conclusion of Linette's testimony, the trial court admitted several pages of

photos showing the children interacting with plaintiffs. (The photos, which appear to have been

taken between G.R.'s infancy and the May 2012 visit, generally show the children appearing

happy and content.)

¶ 24 b. Mary McMillan's Testimony

¶ 25 Mary McMillan, who had been best friends with Casey, visited plaintiffs' home

almost daily after Casey's death. McMillan testified that during the 18 months following Casey's

-6- death, "[plaintiffs] were, for all intents and purposes, the parents." The children were very close

with plaintiffs, and they would run to the window whenever they saw Linette or Paul arrive

home. According to McMillan, when the children visited plaintiffs' home in May 2012 after

being away since August 2011, "they loved being there. It was as if they never left." McMillan

never heard plaintiffs talk poorly about defendant in front of the children.

¶ 26 c. Shirley Cooper's Testimony

¶ 27 Shirley Cooper, Linette's mother, was present for the August 2011 transfer of the

children from plaintiffs' custody to defendant's custody. Both children were crying and

screaming as defendant and Tiffany strapped them into their car seats.

¶ 28 d. Defendant's Testimony

¶ 29 Defendant, testifying as an adverse witness, stated that he was 26 years old and

lived in Las Cruces, New Mexico. Defendant acknowledged that plaintiffs and the children love

each other. However, when asked if he would allow plaintiffs to visit the children if they

dismissed their petition for grandparent visitation, defendant stated, "we're in court right now, so

I can't answer that question. I have no idea."

¶ 30 On cross-examination by his own counsel, defendant testified that in August

2011, after he regained custody of the children, he sent an e-mail to plaintiffs informing them

that he had changed his phone number and was discontinuing all contact between his family and

plaintiffs "for the time being."

¶ 31 Defendant also noted that when he and Tiffany retrieved the children after the

December 2011 visit, G.R. was wearing a diaper, despite being completely toilet trained.

Following that visitation, G.R. began having nightmares and wetting the bed. G.R. would also

-7- become scared and have nightmares after the weekly phone calls with plaintiffs. Before the

children visited plaintiffs, defendant would attempt to "hype up" the children and get them

excited for the visit. However, G.R. would react by becoming sad and having emotional

outbursts.

¶ 32 e. Paul's Testimony

¶ 33 Paul testified that prior to the car accident, he and Linette would video-chat with

Casey and the children several times each week.

¶ 34 Paul further stated that defendant sent his August 2011 e-mail, which informed

plaintiffs that he was cutting off visitation, to an unused e-mail address belonging to plaintiffs'

adult son, Pauley. Paul never received defendant's August 2011 e-mail.

¶ 35 f. Dr. Judy Osgood's Testimony

¶ 36 Dr. Judy Osgood, a licensed clinical psychologist specializing in children and

families, testified that she believed it was important for plaintiffs to have visitation with the

children and that a lack of visitation would harm the emotional well-being of the children.

Osgood based this opinion on (1) her review of the records of the legal proceedings; (2) pictures

and videos of plaintiffs interacting with the children throughout their lives; (3) entries that

defendant posted on Facebook in 2011; (4) clinical interviews with Linette, Paul, and Pauley;

and (5) the evidence depositions of defendant's expert witnesses (discussed in further detail,

below).

¶ 37 Osgood opined that plaintiffs are high-functioning, stable, and responsible people.

Neither presented any risk factors—such as substance abuse, criminal history, domestic violence,

or mental disorders—to cause Osgood concern regarding visitation. Osgood acknowledged that

-8- she had never directly spoken with or observed the children. However, the consensus in the

psychological community is that young children develop attachments to their caregivers, who

provide consistency, security, trust, and comfort. Based upon her review of photos and videos,

Osgood concluded that the children understood plaintiffs as their primary caregivers and

attachment figures during the 18 months following the car accident, which was a "critical

development stage" for both children. If the children were cut off from plaintiffs, it would cause

a major disruption in their lives. Further, at least for G.R., who remembers Casey, the permanent

loss of visitation with plaintiffs would constitute a second major disruption in his life after the

death of his mother.

¶ 38 Osgood further testified that children who have healthy relationships with

grandparents and other extended family are much more capable of having healthy relationships

with others as they grow older. On the other hand, according to Osgood, children who

experience multiple losses of caregivers—such as children in and out of foster care—tend to

develop reactive attachment disorder, which causes them difficulty in establishing and

maintaining new healthy relationships.

¶ 39 On cross-examination, Osgood acknowledged that it would have been beneficial

for her to meet the children to determine whether an attachment between plaintiffs and the

children existed. Ideally, a practitioner would be able to observe the children interacting with

both the grandparents and the parents for an extended period of time before forming such an

opinion. Osgood clarified that, assuming plaintiffs' representations of the facts were accurate,

she could form an expert opinion as to visitation.

¶ 40 At the conclusion of Osgood's testimony, the trial court admitted without

-9- objection a 12-page "visitation evaluation" prepared by Osgood (dated October 30, 2012), which

was largely consistent with her testimony. Osgood noted in her report that, according to

plaintiffs, defendant was not in contact with his own parents (the children's paternal

grandparents).

¶ 41 2. Defendant's Evidence

¶ 42 a. Defendant's Testimony

¶ 43 Defendant testified that plaintiffs disparaged him during the 2011 court

proceedings. (We again note that the record contains no pleadings, transcripts, or other court

documents from those proceedings.) In June 2011, on the morning after the trial court ordered

plaintiffs to return the children to defendant, plaintiffs and defendant sat down for a meeting to

discuss the transition. Although the court had ordered a 60-day transition period, plaintiffs told

defendant that they did not intend to return the children until the evening of the 59th day. Linette

further told defendant that he "had not suffered enough" and that he remarried too soon. Linette

told Tiffany that "she would never be a mommy," and "she would never be able to take care of

the children" because she was too young and she did not give birth to them. The animosity

between the parties prevented any agreement as to the terms of the transition.

¶ 44 According to defendant, visits and phone calls with plaintiffs were harmful to the

children. G.R.'s nightmares and bed-wetting always coincided with visits and phone calls with

plaintiffs. Shortly after the December 2011 visit, defendant placed G.R. in counseling. G.R.'s

nightmares and bed-wetting became more intense after the May 2011 visit in Decatur. Soon,

G.R. was seeing a counselor at least once per week. On one occasion, plaintiffs failed to abide

by defendant's instructions that E.R. wear a certain brand of diapers and use a certain type of

- 10 - medication for diaper rash. When plaintiffs returned E.R. to defendant, she had a diaper rash that

required a visit to the doctor. During the most recent visit in New Mexico, however, the children

were allowed to sleep in defendant's home each night after spending the day with plaintiffs.

Defendant noticed a "substantial decrease" in G.R.'s nightmares and bed-wetting after that visit.

¶ 45 b. Tiffany's Testimony

¶ 46 Tiffany, who became the adoptive mother of the children in February 2013,

testified that plaintiffs returned G.R. after the December 2011 visit wearing a diaper, which he

had completely soiled. At the time, G.R. had already been toilet trained and was used to wearing

regular underwear. Following the May 2012 visit, as plaintiffs and the children were walking

toward defendant and Tiffany in the El Paso airport, G.R. wet himself. For several days

following that visit, G.R. was withdrawn and E.R. was "more sensitive to sounds."

¶ 47 c. Dr. Robert DelCampo's Testimony

¶ 48 Dr. Robert DelCampo—a marriage and family therapist licensed in New

Mexico—testified in December 2012 by means of evidence deposition, the transcript of which

the trial court admitted at the November 2013 hearing.

¶ 49 DelCampo testified that between April 2012 and December 2012, he met with

defendant, Tiffany, and the children together on four or five separate occasions. During those

meetings, DelCampo would observe defendant and Tiffany interact with the children.

DelCampo characterized defendant and Tiffany's parenting as "very positive."

¶ 50 DelCampo admitted that most of his knowledge about the children's reactions and

attitudes toward plaintiffs was based upon information provided to him by defendant and

Tiffany. In summer 2012, defendant informed DelCampo that the children "were having night

- 11 - terrors and not wanting to go with [plaintiffs]." According to what DelCampo learned from

defendant, the children's problems—specifically, night terrors and bed-wetting—would occur for

approximately one week before and after visits with plaintiffs. In October 2012, while

DelCampo was playing a game with G.R., G.R. "in no uncertain terms expressed a reticence to

want to interact with [plaintiffs]."

¶ 51 Based upon his knowledge of the situation, DelCampo opined that "it is traumatic

at this point in time for the kids to be consorting with [plaintiffs]." Specifically, given the age of

the children, it is "grossly inappropriate" for them to stay with plaintiffs for a week at a time with

no ability to interact with defendant or Tiffany.

¶ 52 Contrary to Osgood's testimony, DelCampo stated that it is "highly improbable"

for children between six months and four years of age—roughly the ages of E.R. and G.R. when

they lived with plaintiffs—to develop attachments to primary caregivers. Accordingly,

DelCampo opined that it would not be harmful for the children to be deprived of visitation with

plaintiffs. (We note that during the evidence deposition, DelCampo expressed his understanding

that the children had lived with plaintiffs for less than one year.)

¶ 53 On cross-examination, DelCampo acknowledged that (1) he did not observe the

children interact with plaintiffs and (2) doing so might have affected his opinion.

¶ 54 d. David Linares's Testimony

¶ 55 David Linares, a licensed professional clinical counselor from New Mexico,

worked as a therapist for children and families at Fort Bliss. Linares testified in January 2013 by

means of evidence deposition, the transcript of which the trial court admitted at the November

2013 hearing. At the time of the deposition, Linares had been meeting with G.R. on a weekly

- 12 - basis since July 2012.

¶ 56 Tiffany originally brought G.R. in for counseling because he was suffering from

night terrors and bed-wetting, which Tiffany reported would occur shortly after G.R. spoke with

plaintiffs. (Defendant attended G.R.'s first therapy session, but none thereafter.) Linares

diagnosed G.R. with nightmare disorder. G.R.'s nightmares usually involved plaintiffs "trying to

chase him or get him." At a session in late July 2012, G.R. reported that in one of his dreams,

the Flash—a comic book hero—"saved him from the Robinsons." Linares noted that G.R. calls

plaintiffs "the Robinsons" instead of grandma and grandpa, or some similar title. When Linares

asked G.R. why he does this, G.R. stated "that he doesn't like them and he just wants to call them

'the Robinsons.' " G.R. also reported to Linares that plaintiffs tell him that (1) his mother is dead

and (2) plaintiffs—not Tiffany and defendant—are his real mother and father. G.R. told Linares

that plaintiffs often tell him to "shut up" and "be quiet," which hurts his feelings and makes him

angry.

¶ 57 As a treatment goal for G.R., Linares wanted G.R. to express his feelings and

explore his "inner world." However, Linares stated that this goal "has been a little bit

complicated by his mother, Tiffany, not wanting to reveal to him that she is the stepmother."

Linares elaborated, as follows: "[G.R.] has this question that directly crosses his feelings

regarding 'why are [plaintiffs] in my life?' And the most that he knows is that they're the

grandparents. But he relates grandparents to the Reifs [(defendant's parents)]. So that creates

confusion." Early in G.R.'s therapy, Linares "noticed that Tiffany would talk about [plaintiffs]

kind of negatively in that she would sigh when talking about them. She didn't smile or have any

kind of positive affect toward them." Because children can assimilate those negative attitudes

- 13 - for themselves, Linares encouraged Tiffany and defendant to present a positive attitude when

speaking with the children about plaintiffs. Tiffany and defendant reported to Linares they have

taken his advice, and it is helping.

¶ 58 Although G.R. has made improvements in his therapy, he still regresses after

having contact with plaintiffs. Linares also noted, however, that until approximately one or two

months before the January 2013 evidence deposition, G.R. was under the impression that

plaintiffs were trying to gain full custody over him and E.R. G.R. did not understand that the

instant court case involved only visitation rights.

¶ 59 In September 2012, Linares decided to make phone contact with plaintiffs, which

he explained, as follows:

"I typically don't do mediation, but I thought maybe if I

could talk to the grandparents, I could refer them to a mediator

with [defendant and Tiffany]. And I spoke to [plaintiffs] on the

phone, and they seemed to be very pleasant people. They wanted

to meet me. I was agreeable to that. They came down for a visit.

However, between the time that I spoke to them and the

time they came down for a visit, [defendant] forbade me from

being able to meet with them. He had felt that I had fallen into

their trap, so to speak, and I have been taken in by them. And he

informed me that after going through such a long court process and

spending so much money, that he would want to get this resolved.

He did not want to mediate anything."

- 14 - ¶ 60 Contrary to DelCampo's testimony, Linares testified that children the ages of G.R.

and E.R. do form attachments to caregivers. Research indicates that attachments take between

two months and two years to form. Although Linares opined that G.R. formed an attachment to

plaintiffs, Linares concluded that whatever attachment existed was either very poor or altogether

broken because G.R. clearly dislikes plaintiffs and does not want to see them. Because contact

with plaintiffs "hurts" G.R., Linares recommended that no visitation between plaintiffs and G.R.

occur for "at least a period of a few years."

¶ 61 Linares acknowledged that although he has had no direct interaction with E.R.,

his recommendation would likely be the same for her.

¶ 62 On cross-examination, Linares admitted that if G.R. formed an attachment to

plaintiffs, defendant's and Tiffany's negative comments about plaintiffs—if any—could have a

"moderate to a very heavy effect on that bond *** because [G.R.] is so young that he can still be

indoctrinated for certain beliefs." In any event, regardless of whether G.R.'s attitude toward

plaintiffs is justified, or the product of defendant and Tiffany's indoctrination, Linares was

certain that G.R. viewed his relationship with plaintiffs in a very negative light.

¶ 63 3. The Trial Court's Ruling

¶ 64 In February 2014, after reviewing the transcripts of the evidence depositions and

hearing the parties' arguments, the trial court granted plaintiffs' petition for grandparent

visitation. The court found—based upon "common sense" and Osgood's testimony (which the

court found credible)—that the children had formed an attachment to plaintiffs during the 18

months that they lived together. Accordingly, plaintiffs had rebutted the presumption that

defendant's decision to cut off visitation was not harmful to the children.

- 15 - ¶ 65 In March 2014, the trial court entered a written order, which provided that

plaintiffs shall have the following visitation rights as to the children: (1) a weekly, unsupervised

phone call; (2) a seven-day visit every June in Decatur; and (3) weekend visits in New Mexico

once every April, October, and December.

¶ 66 This appeal followed.

¶ 67 II. ANALYSIS

¶ 68 Defendant argues that (1) plaintiffs lacked standing under section 607(a-5)(1) of

the Act because defendant did not unreasonably deny visitation; and (2) the trial court's judgment

was against the manifest weight of the evidence because plaintiffs failed to rebut the statutory

presumption that defendant's actions and decisions regarding grandparent visitation were not

harmful to the children's mental, physical, or emotional health. We address defendant's

arguments in turn.

¶ 69 A. Standing Under Section 607(a-5)(1) of the Act

¶ 70 Defendant argues that plaintiffs lack standing under section 607(a-5)(1) of the

Act, which provides, in pertinent part, as follows:

"Except as otherwise provided in this subsection (a-5), any

grandparent, great-grandparent, or sibling may file a petition for

visitation rights to a minor child if there is an unreasonable denial

of visitation by a parent and at least one of the following

conditions exists:

***

- 16 - (A-5) the child's other parent is deceased or has

been missing for at least 3 months." 750 ILCS 5/607(a-

5)(1) (West 2010).

Although defendant concedes that the children's other parent (Casey) is deceased, he contends

that plaintiffs lack standing because no "unreasonable denial of visitation" existed. Plaintiffs

argue that defendant forfeited this standing argument by failing to raise it in a timely manner in

the trial court. We agree with plaintiffs.

¶ 71 "Under Illinois law, lack of standing is an affirmative defense, which is the

defendant's burden to plead and prove." Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217,

252, 930 N.E.2d 895, 916 (2010). "[A] lack of standing will be forfeited if not raised in a timely

manner in the trial court [citations]." Id. at 252-53, 930 N.E.2d at 916.

¶ 72 In this case, defendant waited until closing arguments in February 2014—2 1/2

years after plaintiffs filed their petition for grandparent visitation—before arguing that visitation

was not unreasonably denied. Even then, defendant did not couch his argument in terms of

"standing" (he never uttered the word). Instead, defendant contended that an unreasonable denial

of visitation was a "part of the test" for obtaining grandparent visitation, which plaintiffs had

failed to prove. By the time of closing arguments in February 2014, the parties had (1) filed

multiple pretrial motions, (2) hired expert witnesses, (3) conducted two evidence depositions,

and (4) engaged in a full evidentiary hearing. Even if defendant's closing argument could be

construed as raising an objection to plaintiffs' standing, that objection was clearly untimely.

Accordingly, defendant has forfeited his objection to plaintiffs' standing under section 607(a-

5)(1) of the Act. (We note that defendant declined to file a reply brief responding to plaintiffs'

- 17 - forfeiture argument.)

¶ 73 We also note that even if defendant had preserved his objection under section

607(a-5)(1) of the Act, the record contains sufficient evidence to support a finding that defendant

unreasonably denied visitation. Although both parties could have approached the situation more

diplomatically, defendant terminated all visitation after plaintiffs had spent the past 18 months

taking on full parenting responsibilities for defendant's children, even after defendant had

returned to health. Given Casey's death, as well as the intimate relationship that must have

existed between the children and plaintiffs for 18 months, the court could have concluded that it

was unreasonable for defendant to completely cut ties with plaintiffs immediately upon obtaining

custody of the children.

¶ 74 B. Visitation Under Section 607(a-5)(4) of the Act

¶ 75 Defendant next argues that the trial court's judgment was against the manifest

weight of the evidence. Specifically, defendant contends that plaintiffs failed to rebut the

statutory presumption that defendant's actions and decisions regarding grandparent visitation

were not harmful to the children's mental, physical, or emotional health. That presumption is

contained in section 607(a-5)(3) of the Act, which provides as follows:

"In making a determination under this subsection (a-5), there is a

rebuttable presumption that a fit parent's actions and decisions

regarding grandparent, great-grandparent, or sibling visitation are

not harmful to the child's mental, physical, or emotional health.

The burden is on the party filing a petition under this Section to

prove that the parent's actions and decisions regarding visitation

- 18 - times are harmful to the child's mental, physical, or emotional

health." 750 ILCS 5/607(a-5)(3) (West 2010).

¶ 76 This statutory presumption reflects the United States Supreme Court's decision in

Troxel v. Granville, 530 U.S. 57, 68 (2000), which recognized "a presumption that fit parents act

in the best interests of their children." That presumption derives from the due process clause of

the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), which

"protects the fundamental right of parents to make decisions concerning the care, custody, and

control of their children." Troxel, 530 U.S. at 66; see Flynn v. Henkel, 227 Ill. 2d 176, 181, 880

N.E.2d 166, 169 (2007).

¶ 77 In Troxel, the Supreme Court struck down a Washington state statute that allowed

any person to seek court-ordered visitation with a child if visitation would "serve the best interest

of the child." (Internal quotation marks omitted.) Troxel, 530 U.S. at 67. The Supreme Court

held that the Washington statute contravened the presumption that a fit parent makes decisions in

the best interest of the child because it placed the best interest determination solely in the hands

of a judge, without affording any special weight to the parent's determination. Id. In so holding,

the Troxel court further noted that the grandparents in that case never alleged that the fit parent

altogether denied visitation. Id. at 71. The court cited visitation statutes from other states

requiring a showing that the parent had denied visitation (or unreasonably denied visitation) to

the concerned third party. Id. at 70.

¶ 78 In the wake of Troxel, the Illinois Supreme Court struck down section 607(b)(1)

of the Act—this state's former grandparent visitation statute—because, like the Washington

statute at issue in Troxel, it "expose[d] the decision of a fit parent to the unfettered value

- 19 - judgment of a judge and the intrusive micromanaging of the state." Wickham v. Byrne, 199 Ill.

2d 309, 320, 769 N.E.2d 1, 8 (2002). In response to Wickham, the General Assembly passed

Public Act 93-911 (eff. Jan. 1, 2005), which amended section 607 of the Act to reflect the

constitutional requirements set forth in Troxel and Wickham. Specifically, Public Act 93-911

added (1) the statutory presumption that a fit parent's decisions regarding visitation are not

harmful to the child (750 ILCS 5/607(a-5)(3) (West 2010)), (2) the requirement that the

concerned third party be unreasonably denied visitation before filing a petition (750 ILCS

5/670(a-5)(1) (West 2010)), and (3) the following list of factors that the trial court "shall

consider" in determining whether to grant visitation:

"(A) the preference of the child if the child is determined to

be of sufficient maturity to express a preference;

(B) the mental and physical health of the child;

(C) the mental and physical health of the grandparent,

great-grandparent, or sibling;

(D) the length and quality of the prior relationship between

the child and the grandparent, great-grandparent, or sibling;

(E) the good faith of the party in filing the petition;

(F) the good faith of the person denying visitation;

(G) the quantity of the visitation time requested and the

potential adverse impact that visitation would have on the child's

customary activities;

(H) whether the child resided with the petitioner for at least

- 20 - 6 consecutive months with or without the current custodian

present;

(I) whether the petitioner had frequent or regular contact or

visitation with the child for at least 12 consecutive months;

(J) any other fact that establishes that the loss of the

relationship between the petitioner and the child is likely to harm

the child's mental, physical, or emotional health; and

(K) whether the grandparent, great-grandparent, or sibling

was a primary caretaker of the child for a period of not less than 6

consecutive months." 750 ILCS 5/607(a-5)(4) (West 2010).

With the pertinent provisions and the constitutional underpinnings of the grandparent visitation

statute in mind, we now turn to the trial court's judgment in this case.

¶ 79 1. Standard of Review

¶ 80 The supreme court has explained the standard of review applicable to the trial

court's judgment under section 607(a-5) of the Act, as follows:

"Section 607(a-5)(3) [of the Act] places the burden on the party

filing the visitation petition to prove that the parent's actions and

decisions regarding visitation times are harmful to the child's

mental, physical, or emotional health. A trial court's determination

that a fit parent's decision regarding whether grandparent visitation

is or is not harmful to the child's mental, physical, or emotional

health will not be disturbed on review unless it is contrary to the

- 21 - manifest weight of the evidence." Flynn, 227 Ill. 2d at 181, 880

N.E.2d at 169.

"A finding is against the manifest weight of the evidence only if the opposite conclusion is

clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence

presented." Best v. Best, 223 Ill. 2d 342, 350, 860 N.E.2d 240, 245 (2006).

¶ 81 2. The Evidence Presented and the Statutory Factors

¶ 82 Initially, we note that plaintiffs' evidence and defendant's evidence painted two

drastically different pictures of the children's relationship with plaintiffs. If plaintiffs' witnesses

are to be believed, the children greatly enjoy being with their loving, nurturing grandparents. On

the other hand, if defendant's witnesses are to be believed, plaintiffs are so nasty to the children

that G.R. has nightmares just from talking to them on the phone. The trial court heard live

testimony from defendant, Tiffany, both plaintiffs, and two witnesses who observed the children

interact with plaintiffs. The court read the evidence-deposition transcripts of both of defendant's

expert witnesses, and it heard the live testimony of plaintiffs' expert witness. When presented

with a record such as this, we are mindful that "[b]ecause the trial court has the best opportunity

to observe the demeanor and conduct of the parties and witnesses, it is in the best position to

determine the credibility and weight to be given to the witnesses' testimony." In re Stephen K.,

373 Ill. App. 3d 7, 20, 867 N.E.2d 81, 94 (2007).

¶ 83 Defendant relies upon the supreme court's decision in Flynn, which reversed the

trial and appellate courts, concluding that the grandmother in that case failed to rebut the

presumption that the fit mother's denial of visitation was not harmful to the child. Specifically,

defendant cites the following passage from Flynn:

- 22 - "Neither denial of an opportunity for grandparent visitation, ***

nor a child 'never knowing a grandparent who loved him and who

did not undermine the child's relationship with his mother,' *** is

'harm' that will rebut the presumption stated in section 607(a-5)(3)

[of the Act] that a fit parent's denial of a grandparent's visitation is

not harmful to the child's mental, physical, or emotional health."

Flynn, 227 Ill. 2d at 184, 880 N.E.2d at 171.

¶ 84 In Flynn, however, "the trial court did not make any specific findings as to how

[the grandmother] had overcome the statutory presumption that [the mother's] decisions

regarding grandparent visitation were not harmful to [the child's] mental, physical, or emotional

health." Id. at 180, 880 N.E.2d at 168. This is a critical distinction between Flynn and the facts

of the case before us. In Flynn, the trial court made the following general statement at the close

of evidence and arguments:

"Based on the testimony presented[,] the Court finds that the

petitioner has met her burden. The harm in this case is not

something that you can put in the sense of a direct emotional harm.

It's a direct denial of an opportunity that every grandparent

according to this statute is entitled to." Id. at 179, 880 N.E.2d at

168.

The Second District appellate court affirmed the trial court's judgment in Flynn, holding as

follows:

"The harm that [the child] would suffer if there were no

- 23 - visitation can be inferred from the evidence. As the trial court

stated, it 'is not something that you can put in the sense of a direct

emotional harm.' However, [the grandmother's] love for [the child]

is manifest in the record. *** If [the grandmother] were denied

visitation, [the child] would be harmed by never knowing a

grandparent who loved him and who did not undermine the child's

relationship with his mother." Flynn v. Henkel, 369 Ill. App. 3d

328, 335, 859 N.E.2d 1063, 1068 (2006), rev'd, 227 Ill. 2d 176,

880 N.E.2d 166 (2007).

¶ 85 Rejecting this reasoning, the supreme court in Flynn noted that the grandmother

"did not present any evidence to show that denial of visitation with her would result in harm to

[the child's] mental, physical, or emotional health. The only evidence pertaining to harm [the

child] would experience from the denial of visitation with his grandmother came from [the

mother], who was asked, 'Do you believe it would be harmful for [the child] not to see [the

grandmother] and visit with her?' and she answered, 'No.' " Flynn, 227 Ill. 2d at 184, 880 N.E.2d

at 170.

¶ 86 In this case, however, plaintiffs presented expert testimony from Osgood, who

explained the psychological community's consensus that young children develop attachments to

primary caregivers. Because E.R. and G.R. spent 18 months with plaintiffs during a "critical

development stage," Osgood opined that the children formed an attachment to plaintiffs. Osgood

based this opinion, in part, on her clinical interviews with plaintiffs and her review of photos and

videos of the children interacting with plaintiffs. Given the existence of this caregiver

- 24 - attachment, Osgood concluded that depriving the children of all visitation with plaintiffs would

cause a major disruption in their lives that would be damaging emotionally.

¶ 87 Osgood further described how terminating the children's relationship with

plaintiffs could lead to reactive attachment disorder, which could cause them difficulty in

establishing and maintaining new healthy relationships in the future. The trial court, noting that

Osgood's testimony was credible, specifically found that (1) the children had formed a bond to

plaintiffs and (2) it would be harmful to the children if their relationship with plaintiffs ceased to

exist.

¶ 88 Defendant argues that the trial court should have based its ruling on the testimony

of his experts, who actually met the children. However, although plaintiff's expert, Osgood, may

have been better informed if she had met the children, we believe (and the trial court could have

concluded) that defendant's experts may have been better informed if they had met plaintiffs.

Indeed, all of the three experts acknowledged to some degree that their opinions were based on

limited information because they did not have an opportunity to observe all the relevant parties

interacting together. This case presents a classic example of a "battle of the experts." The

experts, all qualified in their respective fields, gave differing statements of fact and opinion

regarding whether the children would be harmed if they were deprived of visitation with

plaintiffs. As the supreme court has warned, "a 'battle of the experts' is a situation in which

reviewing courts are especially loathe to second-guess the findings made by the trier of fact."

Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 216, 835 N.E.2d 801,

870 (2005).

¶ 89 In his brief to this court, defendant further asserts—as if it were an undisputed

- 25 - fact—that plaintiffs caused G.R. to suffer from nightmares and bed-wetting. However,

DelCampo and Linares both admitted that most of their knowledge about G.R.'s reactions to

plaintiffs was based upon the reports of defendant and Tiffany. In other words, neither

DelCampo nor Linares had personal knowledge that G.R.'s nightmares and bed-wetting

corresponded in time with visits or phone calls from plaintiffs. Yet DelCampo and Linares based

their ultimate conclusions, in part, on the assumption that defendant and Tiffany were accurately

reporting the timing and severity of G.R.'s nighttime problems. At the hearing, the trial court

was able to judge the credibility of defendant and Tiffany's claims regarding G.R.'s nightmares

and bed-wetting. Although the court did not address whether it found defendant or Tiffany

credible, our standard of review counsels against our blindly accepting defendant and Tiffany's

assertions as true, especially when those assertions may be inconsistent with the trial court's

ultimate decision.

¶ 90 Assuming G.R.'s nighttime problems did actually correspond in time with visits

and phone calls from plaintiffs, the trial court could have reasonably concluded that plaintiffs

were not the primary cause of those problems. By all accounts, the children were happy and

healthy during the 18 months they lived with plaintiffs. It was not until defendant regained

custody of the children and visits with plaintiffs became contentious that G.R. began suffering

from nightmares and bed-wetting. Osgood stated that "messages by [defendant and Tiffany]

probably have a lot to do with [G.R.] having nightmares." Linares acknowledged the possibility

that indoctrination by defendant and Tiffany contributed to G.R.'s negative feelings toward

plaintiffs. Notably, Linares described his only interaction with plaintiffs (his September 2012

phone call to Linette) as follows:

- 26 - "It was a pleasant conversation. The grandmother informed me

that the things that [G.R.] was saying just weren't true, that things

might be misconstrued or thoughts put into his head by [defendant

and Tiffany]. She informed me she was working a second job to

pay for her lawyer. And I thought that was very, very sweet. She

was very pleasant. We had a good conversation overall. And I

informed them how the dynamic, how this might be hurting

[G.R.]"

¶ 91 In this case, the trial court heard evidence that defendant and Tiffany said and did

things which caused the children to view plaintiffs in a negative light. When defendant and

Tiffany took Linares's advice that they present a positive attitude of plaintiffs to the children,

things changed for the better. This suggests that defendant and Tiffany's actions and decisions—

not just those of the plaintiffs—were partially to blame for the mental and emotional harm to the

children.

¶ 92 The trial court had an opportunity to observe both parents and grandparents in

person, study their demeanor, and listen to their testimony. The court was in a better position

than Linares or DelCampo (or this court, for that matter) to judge whether defendant's actions

and decisions regarding visitation were harmful to the children. Implicit in the court's judgment

is the finding that whatever harm might come to the children from regular visitation with

plaintiffs is overcome by the harm that would result from terminating the unique grandparent-

grandchild relationship at issue in this case.

¶ 93 The evidence presented, although conflicting in many important respects, clearly

- 27 - established that plaintiffs raised the children, as if their own, for 18 months following Casey's

tragic death and defendant's hospitalization. Plaintiffs' reluctance to give up the children,

coupled with the ensuing court battle to retain custody, understandably soured defendant's

relationship with plaintiffs. Perhaps unintentionally, the negativity between defendant and

plaintiffs was impressed upon the children, who were undoubtedly overwhelmed and confused as

to the true makeup of their family. The bad blood between plaintiffs and defendant affected the

children's mental and emotional health. The parties blame each other for this. Although a

father's actions and decisions concerning the care, custody, and control of his children are

presumptively valid, defendant's actions and decisions in this case were animated by factors

other than the children's best interests. Although both parties might have good reasons for

resenting each other, section 607(a-5) of the Act focuses on the harm to the children.

¶ 94 The trial court in this case found that plaintiffs met their burden of demonstrating

that defendant's "actions and decisions regarding visitation times are harmful to the child[ren]'s

mental, physical, or emotional health" (750 ILCS 5/607(a-5)(3) (West 2010)). The court found

that the children had formed an attachment to plaintiffs, which, if broken, would cause the

children emotional harm. Based upon our thorough review of the record, we conclude that the

court's judgment was not against the manifest weight of the evidence.

¶ 95 III. CONCLUSION

¶ 96 For the reasons stated, we affirm the trial court's judgment.

¶ 97 Affirmed.

- 28 -