The presumption is that a child born to a married woman is legitimate. People ex rel. Adams v. Mitchell (1980), 89 Ill. App.3d 1023, 1028, 412 N.E.2d 678, 682; In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409, 412; People ex rel. Smith v. Cobb (1975), 33 Ill. App.3d 68, 70, 337 N.E.2d 313, 315; People ex rel. Jones v. Schmitt (1968), 101 Ill. App.2d 183, 186, 242 N.E.2d 275, 276; People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App.2d 1, 7, 192 N.E.2d 691, 693; People v. Powers (1950), 340 Ill. App. 201, 204, 91 N.E.2d 637, 638. • 2 The presumption, however, is not conclusive; it may be rebutted by clear and convincing evidence.

A child is presumed to have been fathered by the man to whom his mother is married but that presumption can be rebutted by clear and convincing proof. ( In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409.) What constitutes such proof depends on the particular circumstances of each case. Ozment, 61 Ill. App.3d at 1047. Bertha Willis contends that Lanna Harris failed to rebut the presumption that Otis Harris is Lanna Harris' father because a mother's testimony alone cannot be used to illegitimize her child.

"[N]atural parents of a child have a superior right as against the world to custody of their child, unless the natural parents are found to be unfit." In Interest of Ozment, 61 Ill. App.3d 1044, 1048-49 (1978). A fit parent has a superior right to custody of his or her child, which can only be superseded by a showing of good cause to place custody of the child in a third party.

To compound this error, the trial court also subjected John's testimony to careful scrutiny. While careful scrutiny may be appropriate in the case of a natural birth where the husband denies paternity (see In re Ozment (1978), 61 Ill. App.3d 1044), such scrutiny is not warranted where the Act's requirement of written consent has not been fulfilled. As Representative Brummer stated during legislative debate on the Act, the Act anticipates in its requirement of written consent that the normal presumption of legal paternity does not apply in the case of artificial insemination.

( Pritz v. Chesnul (1982), 106 Ill. App.3d 969, 974, 436 N.E.2d 631.) That proceedings to establish paternity do not involve legitimization of the children involved is also evidenced by the fact that in two of the cases cited by defendant, In re Ozment (1978), 61 Ill. App.3d 1044, 378 N.E.2d 409, and Happel v. Mecklenburger (1981), 101 Ill. App.3d 107, 427 N.E.2d 974, the plaintiff putative father had to rebut the presumption of legitimacy of a child born in lawful wedlock to establish his own paternity of the child. • 13

Under Illinois law, the birth of a child to a husband and wife creates a strong presumption that the child is legitimate and that the husband is the father. ( In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409.) This presumption of legitimacy prevails even if the marriage is subsequently voided.

The appellate court held that the trial court's finding that the plaintiff failed to prove paternity was not against the manifest weight of the evidence. In In re Ozment (1978), 61 Ill. App.3d 1044, 378 N.E.2d 409, the Department of Children and Family Services filed a dependency petition in the interest of a minor, and one Heater filed a cross-petition alleging he was the father of the minor born during the marriage of the mother to a third person. The appellate court held, in part, that the trial court could reasonably believe that Heater was the natural father of the child.

(See Annot., 49 A.L.R.3d 212 (1973).) Defendant has cited dictum in the case of In re Ozment (1978), 61 Ill. App.3d 1044, 1047, 378 N.E.2d 409, 412, in which the court stated "* * * if we had had before us only the testimony of the mother of the child * * * we would be compelled to rule that a mother cannot illegitimatize her child and therefore her testimony alone would not be sufficient to overcome the presumption of legitimacy. ( People ex rel. Gonzalez v. Monroe (1963), 43 Ill. App.2d 1, 192 N.E.2d 691.)" The court went on to note, however, that the wife's former husband and the putative father both testified that the putative father was the actual father of the child. In Gonzalez the issue was squarely joined, for the mother's paternity action was based primarily on her own testimony as to nonintercourse with her husband at the time of conception.

In civil cases in Illinois, there is a strong presumption that a child born during marriage was fathered by the husband; the presumption is not conclusive and it may be rebutted by clear, convincing and irrefragable proof. ( In re Ozment (1978), 61 Ill. App.3d 1044, 378 N.E.2d 409.) The presumption may be rebutted by either conclusive proof that the husband had no access to his wife during the period of possible conception ( In re Ozment) or by blood tests (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 5).