Parentage

PARENTAGE (PATERNITY) IN ILLINOIS

In today’s society, many children are born to couples outside of wedlock under varied circumstances; however, these children’s needs are not addressed in the Illinois Marriage and Dissolution of Marriage Act due to the parents’ unwed status. As a result, the Illinois legislature responded with the Illinois Parentage Act of 1984 (750 ILCS 45). Illinois wanted to recognize and protect the rights of every child to the physical, mental, emotional and monetary support of his or her parents under this act. This act explicitly states that the rights, privileges, duties, and obligations of being a parent are independent of the marital status of the parents.

In most instances that we will come across in our practice, it is really an issue of paternity. Paternity is the relationship between a father and his child and establishing paternity is the process of making this a legal relationship. However, the client on a paternity case could be the mother, the expectant mother, the man presumed or alleging himself to be the father, the child, or any person or public agency that has custody of, or is providing financial support for the child. Besides determining who the biological parent of the child is, many of these cases involve other issues like custody, visitation, and child support.

1. Why is establishing Paternity important?

Paternity can provide benefits to the parents as well as the child, and it is a good way to get the relationship with the child off to a good start. Establishing paternity is the critical first step in collecting child support. When legal paternity is established, a child has the right to the father's Social Security or veteran's benefits, medical coverage, pensions and inheritance. Also, the medical genetic information of both parents is available for the child if needed for diagnosis and treatment of medical problems.

2. How is the Parent and Child relationship established for mothers?

The parent child relationship is established by the natural mother by proof of her having given birth to the child. The mother can also establish this relationship through any other means under the Illinois Parentage Act of 1984. In very rare cases, the identity of the mother may be in question. This usually happens when the mother is deceased and a dispute arises over the inheritance of the estate. Illinois Parentage Act of 1984 offers a way for affected parties to conclusively determine whether a particular child is, in fact, the biological offspring of a mother.

3. How is legal paternity established?

Parentage (paternity) of a child may be established in one of three ways under Illinois law: by presumption, by consent, and by judicial determination.

I. ESTABLISHING PARENTAGE BY PRESUMPTION:
a. In Illinois, when a married woman either conceives or gives birth to a child, the husband at the time of conception or birth is presumed to be the father of the child. This is true even if the marriage is invalid.

b. When an unmarried woman gives birth and later marries, the new husband will be presumed to be the child’s father if he is named -with written consent- as the child’s father on the child’s birth certificate.

c. When an unmarried man along with the child’s mother voluntarily signs a Voluntary Acknowledgment of Paternity (V.A.P) the unmarried man will be presumed to be the father of the child.

d. If the mother is married - thereby creating a second presumptive father (her husband) - the husband and wife must sign a Voluntary Denial of Paternity (V.D.P). In addition the biological father must also sign a VAP. Unless both the VAP and the VDP are signed, the husband will still be presumed the father.

II. ESTABLISHING PARENTAGE BY CONSENT:

a. The Voluntary Acknowledgment of Paternity (VAP) - These forms are presented to allow couples to establish paternity and provide several warnings to would be fathers. The warning is as follows:

NOTICE OF RIGHTS AND RESPONSIBILITIES
When the mother and alleged biological father properly sign the Voluntary Acknowledgment of Paternity form and, if required, the husband / ex-husband and mother sign the Voluntary Denial of Paternity form, the alleged biological father becomes the legal father of the child for all purposes. The biological father and / or mother may be ordered to pay child support until the child is at least 18 years old, including retroactive child support from the date of the child’s birth, reimbursement of public assistance paid to the custodial parent for the child, medical costs and medical insurance for the child until the child is at least 18 years old.
You have the right to an attorney, a hearing and a right to have genetic testing. When the alleged biological father and the mother sign the Voluntary Acknowledgment of Paternity they are waiving those rights. Custody of the child is presumed to be with the mother. The alleged biological father may petition the courts for custody and visitation rights.
You should have a genetic test if you are not sure who is the biological father of the child. If the results of the genetic testing show that the man is the biological father of the child you can sign the Voluntary Acknowledgment of Paternity form and the mother and husband / ex-husband may sign the voluntary Denial of Paternity form.
If you want legal advice you should talk to an attorney. If you would like to establish paternity without going to court or need other child support services, you may call the Illinois Department of Public Aid at 1-800-447-4278. Persons using a teletypewriter (TTY) may call 1-800-526-5812.

b. * PLEASE NOTE paternity IS established by these forms. SOLE CUSTODY automatically goes to the mother - Issues of joint custody, visitation, and child support are not decided by the VAP and are not typically addressed by the Illinois Department of Public Aid when they pursue child support.

c. There are only two ways to UNDO a VAP (2yrs)
i. Rescission - 60 days after the date of acknowledgment is signed.
ii. Challenge - After 60 days have, an individual may try to challenge the voluntariness of the acknowledgment if he can show that it was obtained by fraud, duress or material mistake of fact. This also must be brought within a certain time frame and under the correct legal statute.

III. COURT-ESTABLISHED PATERNITY AND PROVING PATERNITY:

a. The first issue to consider in any court action is whether the cause of action is being brought in a timely manner; i.e. Statue of Limitations: (2yrs)
i. An action brought by the child or on the child’s behalf, by the alleged natural parent, or by the IL Dept. of Public Aid after providing financial support shall be barred if brought later than 2 years after the child reaches the age of majority.
ii. An action brought by a public agency other than the IL Dept. of Public Aid if it is or has provided financial support to the child or is assisting with child support collection services shall be barred 2 years after the agency has ceased to provide assistance to the child.
iii. An action to declare the non-existence of the parent child relationship shall be barred if brought later than 2 years after the filing party obtains knowledge of relevant facts but shall not extend beyond the date on which the child reaches 18 years of age.
iv. An action to declare the non-existence of the parent child relationship may be brought after an adjudication of paternity based on the presumption of paternity when a DNA indicates that the party adjudicated to be the father is NOT the natural father MUST be brought within 2 years after the filing party obtains knowledge of relevant facts but shall not extend beyond the date on which the child reaches 18 years of age. The 2-year period shall not apply to periods of time where the natural mother or the child refuses to submit to DNA tests.
v. Failure to bring an action to the existence of the parent child relationship shall not bar any defense in an action that seeks to declare the non-existence of the parent child relationship. Conversely, Failure to bring an action to the non-existence of the parent child relationship shall not bar any defense in an action that seeks to declare the existence of the parent child relationship.

b. The second step is to file the cause of action with the court – everything happens very much like in a divorce case. Of special importance is the notice provided to the other parties in the case. Failure to follow the detailed, technical requirements can invalidate a case.
i. The summons that is served on the defendant must contain, in addition to the other civil procedure requirements, the following: “If you do not appear as instructed in this summons, you may be required to support the child named in this petition until the child is at least 18 years old. You may also have to pay the pregnancy and delivery costs of the mother.”
ii. Paternity can be established by default when an alleged father fails to attend a scheduled interview or to go for a scheduled genetic test and has been properly served with a notice to appear.
iii. Paternity can be established by publication of the alleged father's name in the newspaper.
iv. An additional notice is required when seeking to establish the parent child relationship by consent or when the alleged father is different from the man presumed to be the father which should be served in the same manner as the summons.

NOTICE TO PRESUMED FATHER (STATUTE)
IN THE MATTER OF NOTICE TO _________________ PRESUMED FATHER.
You have been identified as the presumed father of ________ born on ________.
The mother of the child is __________.
An action is being brought to establish the parent and child relationship between the names child and a man named by the mother, __________.
Under the law, you are presumed to be the father if (1) you and the child’s mother are or have been married to each other, and the child was born or conceived during the marriage; or if (2) upon the child’s birth, you and the child’s mother married each other and you were named, with your consent, as the child’s father on the child’s birth certificate.
As the presumed father, you have certain legal rights with respect to the names child, including the right to notice of the filing of the proceedings instituted for the establishment of parentage, the right to submit, along with the mother and child, to deoxyribonucleic acid (DNA) tests to determine inherited characteristics. If you wish to retain your rights with respect to said child, you must file with the Clerk of this Circuit Court of __________County, Illinois whose address is ___________, Illinois, within 30 days after the date of receipt of this notice, a declaration of parentage stating that you are, in fact, the father of said child and that you intend to retain your legal rights with respect to said child, or request to be notified of any further proceedings with respect to the parentage of said child.
If you do not file such declaration of parentage, or request for notice, then whatever legal rights you have with respect to the named child, including the right to notice of any future proceedings for the establishment of parentage of the child, may be terminated without any further notice to you. When your legal rights with respect to the named child are so terminated, you will not be entitled to notice of any future proceedings.

c. The third step is to have the parties participate in a DNA test to establish by expert evidence that the parent child relationship does or does not exist.
i. The court, upon request of a party shall order or direct the mother, child, and alleged father to submit to DNA test as soon as practicable. However, the party demanding the DNA test is required to pay for the testing or the parties may even have to share the cost of the testing. In some cases where the party requesting the DNA test is deemed to be an indigent by the court, the expense shall be paid by the public agency representing the indigent or by the county itself.
ii. If a party refuses to submit to the test than the court may resolve the question of paternity against that party or seek to enforce its order if necessary to protect the rights of others.
iii. The test must be conducted by an expert qualified as an examiner of blood or tissue types and appointed by the court. A hearing can be requested to object to the qualifications of the expert or the test procedures. An independent examiner may also be used to present expert testimony.
iv. The expert shall prepare a written report of the test results. If the father is not excluded then a report must contain a paternity index as to the probability of paternity.
v. These genetic test results are often conclusive, although courts often allow contradicting evidence, such as proof that the alleged father had no physical access to the mother at the time of conception.

d. The fourth step is to establish child support. A temporary order for support can be granted during the pending judicial determination of parentage by showing clear and convincing evidence of paternity. The same guidelines used in the Illinois Marriage and Dissolution of Marriage Act are used in setting this amount.
i. If an action is brought within two years of the child's birth, the judgment may require either parent to pay the reasonable expenses incurred during the mother's pregnancy and the delivery of the child, but not lost wages.
ii. The court may award back support. The question of whether and to what extent back support will be payable is determined on a case by case basis. There are several relevant factors in making this determination. The court will consider the factors as outlined in the IMDMA and the following:
1) the father’s prior knowledge of the facts and circumstances of the child’s birth;
2) the father’s prior willingness or refusal to help raise or support the child;
3) the extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs or attempted to seek or require his help in raising or supporting the child;
4) the reasons the mother or public agency did not file the action earlier; and
5) the extent to which the father would be prejudiced by the delay in bringing the action.
iii. It is generally presumed that the father's current net income is the same as the father's net income from the date of the child's birth. Accordingly, the mother generally does not have to prove the amount of the father's previous net income in order to obtain an award of back child support.
e. The fifth step is to have a judgment of parentage entered
i. The judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support.
ii. The judgment may contain provisions concerning the custody and guardianship of the child, visitation privileges with the child, or any other relevant issue concerning the best interests of the child.
iii. The court shall use the standards outlined in the IMDMA when rendering these decisions.

f. After obtaining a judgment, you may need to use certain procedures to enforce that judgment or have the judgment modified.
i. Any party, person or agency that has provided or may provided financial assistance to the child may seek to enforce the paternity judgment.
ii. Failure to obey the judgment can result in contempt of court.
iii. The court may choose to pierce the veil of ownership in order to attach to other assets in order to satisfy the judgment.
iv. The court may also suspend driving privileges when the obligor is delinquent for more than 90 days.

g. Any establishment of paternity made under the laws of another state shall be given full faith and credit in this State regardless of the means used to establish the paternity.

4. What if the mother wants to terminate the father's relationship with the child?

The courts do not want that to happen unless and until another adult is ready, willing, and able to provide the love and support the child is entitled to receive. In some cases where both parents agree, the child's legal relationship with one or both parents is terminated to make the child legally available for adoption. Sometimes the parent-child relationship is terminated against the will of the parents. That could happen in cases of child abuse and neglect. Even if there are not any adoptive parents, the state sometimes terminates the abusive parents' rights or because they've abandoned the child.

THE “PUTATIVE FATHER REGISTRY”: In the infamous “Baby Richard Case,” an unwed mother lied to the father and told him that the child had died prior to birth. The father, who had been out of the country at the time, returned to America to discover that, in fact, the mother had given birth and given the child up for adoption. The father sued the adoptive parents to obtain custody of his biological son. The case played out in the media and, eventually, the child was removed from his adoptive parents – the only family he had known – and turned over to the father, a relative stranger, as the news cameras rolled.
Reacting to the tragic scene, Illinois’ legislature created the “Putative Father Registry.” Under the law, a man who claims to be the father, and who wants to protect his rights to a child, must register with a State agency at anytime prior to the birth, or within 30 days of a child’s birth (there is a way to extend the time limit). Once he’s registered, a “putative father” must be given notice of any adoption and have an opportunity to be heard if he wishes to object to the proposed adoption. If, however, a father fails to properly sign up with the Putative Father Registry, then an adoption can go forward without notifying the father.

Father’s wanting to prevent an adoption - need to register with the IL Putative father Registry and then establish legal paternity proceedings w/ in 30 days to protect his rights OTHERWISE:
His consent to an adoption will not be required.
He will not receive notice of the filing of an adoption action.
He will not receive notice of any hearing in an adoption action.
He will be deemed to have abandoned the child and his failure to register shall be prima facie evidence of sufficient ground to support termination of his parental rights.
He may be barred from declaring himself to be the father of his child in a paternity action.

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