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Parentage Basics

by Wes Cowell; updated 7 May 2016 -- suggest a correction


Illinois parentage and paternity law stands separate from the divorce law. In many ways, however, the parentage and paternity law looks to the divorce law for matters of custody, visitation, and child support. If you're an unwed parent facing a custody, visitation, child support, or other issue before the parentage or paternity courts, you should work with an attorney who has experience in both arenas – divorce and paternity – to ensure you maximize your results.  Need advice?  Callleave your info, or scheduleschedule a consult.


Background:  Illinois law recognizes that many of today's parents never marry.  Although adultery and fornication are still crimes in Illinois (adultery is a class A misdemeanor and fornicationis a class B misdemeanor), those laws are not enforced and the primary concern of the court for a child born out-of-wedlock is the well-being of the child.  Indeed, Illinois law specifically "recognizes the right of every child to the physical, mental, emotional and monetary support of his or her parents . . .." Those rights extend to kids of unwed parents as well as kids in homes with married, divorce, separated, or adoptive parents.


Parentage (paternity) of a child may be established in one of three ways under Illinois law: 1) by presumption, 2) by consent, and 3) by judicial determination.


Establishing Parentage by Presumption:  In Illinois, when a married woman gives birth, the husband is presumed to be the father of the child. This is true even if the marriage is invalid.  Likewise, when a child is conceived at a time when the mother is married, the husband at the time of conception is presumed to be the father – even if the marriage was invalid or is dissolved prior to the birth of the child.


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 his written consent – as the child's father on the child's birth certificate.


Finally, a man who, along with the child's mother, voluntarily signs a Voluntary Acknowledgment of Paternity (V.A.P.) will be presumed to be the father of the child.  If the mother is married – thereby creating another presumptive father (her husband) -- the husband and wife must sign a Voluntary Denial of Paternity (V.D.P.) and the wife and biological father must sign a Voluntarily Acknowledgment of Paternity.  Unless both the V.A.P. and the V.D.P. are signed, the husband will still be presumed to be the father.


Establishing Paternity by Judicial Determination: Parents of children born out of wedlock may also go to court to establish a child's paternity and to address matters of parental responsibilities (decision-making and parenting schedules) and child support. In cases where unwed parties don't sign the V.A.P. at the hospital, the only way a parent (either a mother or father) can legally establish the identity of the father is by going to court. These types of cases can be filed by just about anyone connected with the child – the mother (even when she's still pregnant – before the child is born), a man claiming to be the father or a man presumed to be the father, any person who has custody of the child and is financially supporting the child, and even the child can file such a suit. Papers have to be prepared and filed, the other parent has to have notice of the court case – everything happens very much like in a divorce case.   The papers can be filed at any time up to two years after the child attains the age of majority.


In paternity cases, either parent can demand a DNA test to prove whether the alleged father is really the biological father. In many cases, the state will pay for the testing. In some cases, 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.  If the father refuses to submit to the test, the court has the power to conclude that he is the father.  Be careful, though, because the law is very technical in this area and failure to follow all of the detailed requirements may invalidate the paternity order.


Of special importance is the way the papers are delivered to the other parties in the case. Failure to follow the detailed, technical requirements can invalidate a case and make worthless all the work put into it – and can have drastic effects on later things like estate inheritances and liability issues.


Voluntary Denials of Paternity: Married women sometimes give birth to a child conceived by a man other than their husband. There are also situations where a married woman becomes pregnant by a man outside the marriage while her divorce case is still going through the court system. The husband will want to prove that he is not the father – doing so will relieve him of any possible future liability (if the couple later divorces he won't have to pay child support) and the real father will have to pay support.  The husband (or very recent ex-husband), howeer, will be presumed to be the father under Illinois law. That's right: when a child is born or conceived at a time when the mother is married, the husband is presumed to be the father – and either he or the mother must take legal action in order to avoid a hefty child support obligation, years of co-parenting involvement, and other responsibilities and infringements.


One option – almost never used – is to sign a Voluntary Denial of Paternity form at the hospital when the child is born.  It works very much like the V.A.P. (see above).  The Voluntary Denial of Paternity says they both agree that the husband is not the father.  If either the mother or the father refuse or fail to sign the form, the matter must be brought before a judge. Until that happens, the husband (or recent ex-husband) will be presumed to be the father and will have all the rights and responsibilities (including child support) of parenthood.


My advice is to forget the forms at the hospital and instead immediately hire an attorney and go to court to sort things out.  If you sign the wrong form, if something goes wrong with the form, if some bureaucrat somewhere misplaces or misfiles the form, you, your former spouse, and the child will all be in for some very difficult and costly years.  Remember: you'll be depending solely on the employees at the hospital and the workers and policies of the Illinois Department of Human Services to protect your rights. The minimal amount you may spend on legal advice and representation to know with certainty your rights and obligations have been properly protected will be well worth it.


Proving Non-Paternity:  Short of getting the mother to sign a V.D.P., the only recourse alleged fathers have is to go to court and prove non-paternity.  The process is very simple if the mother cooperates.  If she refuses to cooperate, a finding of non-paternity may be mandatory.  Work with a lawyer.


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 who wants to protect his rights to a child must register 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 and have an opportunity to be heard if he objects to the proposed adoption.  If the father fails to properly sign up with the Putative Father Registry, then an adoption can go forward without notifying the father.


No Connection Between Putative Father Registry and Paternity:  A father seeking to establish that he is the parent of a child need not first register with the Putative Father Registry. The law creating the Putative Father Registry is part of Illinois’ adoption laws, not the paternity and custody laws.   In JSA v. MH, parties were attorneys working in the same office from 1993 to 1998.  Each was married, though not to each other.  They had an affair and conceived a child.  When the baby boy was born (in 1996), MH’s  husband (WCH) was listed as the father on the birth certificate.  In February, 1999, at the request of JSA, the parties took a DNA test and learned that JSA was the father.  In September of that year, JSA filed a Petition under the Parentage Act.  Shortly thereafter, MH and WCH filed a petition under the Adoption Act.  They had a strong case for adoption as WCH was presumed by law to be the child’s father because he was married to MH at the time of the birth.  JSA, the biological father, objected to the adoption.  JSH and WCH succeeded in having JSA dismissed as a party from the adoption action.  They also sought to dismiss JSA’s paternity case arguing that he failed to register with the Putative Father Registry.  They lost that argument but the court agreed that a “best interest” hearing should be had before the paternity case continued and, on that point, the court concluded that it would not be in the best interest of the child to allow a court-authorized DNA test.  JSA’s paternity case was dismissed.  He appealed.


JSA won his appeal.  It was wrong for the trial court to conduct a “best interest” hearing before establishing paternity.  The paternity case was consolidated into the adoption case.  On a second appeal, however, the appellate court ruled that because JSA failed to register with the Putative Father Registry, he was prohibited from intervening in the adoption action and also from even filing a paternity case.  J.S.A. v. M.H., 384 Ill. App. 3d 998, 893 N.E.2d 682, 3323 Ill.Dec. 410 (3d Dist., 2008)


JSA appealed that ruling to the Illinois Supreme Court.  The Illinois Supreme Court ruled in favor of the biological father, JSA.  The two laws have distinct purposes and they do not overlap.  When the legislature passed the Putative Father Registry law, it was augmenting the adoptions laws, not adding additional requirements to the paternity laws.  The purpose of the Putative Father Registry law is to ensure that fathers are given notice prior to the adoption of their children.  The Putative Father Registry requirements only apply in case where an adoption is pending or likely.  In this case, they both knew he was the father and they knew how to contact each other (they worked in the same office). The purpose of the paternity laws 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.”   Neither purpose would be served by denying JSA’s efforts to be found to be the father.  J.S.A. v. M.H., 224 Ill.2d 182, 863 N.E.2d 236, 309 Ill.Dec. 6 (Ill., 2007)


Establishing Maternity: 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 law offers a way for affected parties to conclusively determine whether a particular child is, in fact, the biological offspring of a mother.


Establishing Paternity of Still Born Fetuses:  Illinois courts will permit a man claiming to be the “illegitimate” father of a still born fetus to assert paternity.  In one case, the mother was involved in a fatal automobile accident in the eighth month of gestation.  The fetus was delivered still born.  The deceased mother’s parents (the grandparents of the fetus) sought heirship of the fetus to a large cash settlement stemming fro the accident.  The deceased mother’s boyfriend alleged he was the father of the fetus.  The court allowed the father to move forward seeking a determination of paternity.  He eventually recovered $67,000 for the wrongful death of the unborn child.


Attorneys and Attorneys' Fees: Most people facing court hire an attorney – paternity court is no different. Whether you wish to establish or challenge an initial paternity order, or seek to modify an existing (custody, visitation, child support, etc.) order, it almost always pays to hire a good lawyer. Paternity court can impact your life for decades to come. Don't risk your future – or your child's future – by trying to go it alone. Talk with the attorneys at our office about your case and how we can help.


Although Illinois paternity law does not specifically permit the court to order one side to pay the other side's attorneys' fees in a paternity case, there have been recent developments in Illinois law that can be used as a backdoor way to help finance your case. In other words, although not specifically authorized in the law, there is a sort of loophole that says that a party to a parentage case may be able to have the other side pay for all – or at least part of – their attorneys' fees and legal expenses.


Custody, Visitation and Child Support:  Issues of custody, visitation, and child support are determined using the laws and cases as if the parents had been married.  Read our other articles on custody, visitation, and child support.


College Expenses:   Rawles v. Hartman, 172 Ill.App.3d 931





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