The VAP & Birth Certificate

by Wes Cowell; updated 12 August 2015

 

Once a man signs a VAP, he's the father unless he "rescinds" the VAP or "challenges" the VAP.  His name goes on the birth certificate.  DNA testing is NOT needed.  Mom automatically gets custody.  Need advice?  Callleave your info, or schedulescheduleschedule a consult.

 

Establishing Parentage by Consent – The Voluntary Acknowledgment of Paternity (V.A.P.):  When a child is born to parents not married to each other, the hospital administrative staff, a physician, nurse, or midwife is supposed to present to the parents fill-in-the-blank forms (created by the Illinois Department of Public Aid) that will establish paternity. The law requires medical facilities that birth children to have the forms available.  An unmarried father’s name cannot be put on a child’s birth certificate unless both parents sign the V.A.P.

 

The forms carry a warning to the effect that "once you sign this form you will become the legal father of the child for all purposes." The forms warn would-be fathers that they could be on the hook for child support, medical expenses and insurance for the child and that, by signing the form, the "father" waives his right to an attorney, a hearing, and DNA testing. Here's the warning:

 

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.

 

The V.A.P. forms include court papers (essentially, the same kind an attorney would prepare) and  an automatic court order that identifies the father and the mother. The forms are to be completed only if both parents agree.

 

Custody and Child Support Award:  If the parents agree and sign the V.A.P., the completed forms are processed and – POOF! – just like that, paternity has been established.  Custody automatically goes to the mother and in a few weeks or months, the new father can expect to receive papers from the Illinois Department of Healthcare and Family Services that will soon force him to start paying child support.

 

Custody automatically Goes to Mom:  Under the V.A.P. procedure, custody automatically goes to the mother (that's not joint custody, that's sole custody goes to the mother automatically).  Illinois law (750 ILCS 45/14(a)(2)) says:

 

(2) If a judgment of parentage contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting custody to the other parent. If the parentage judgment contains no such provisions, custody shall be presumed to be with the mother . . . .

 

750 ILCS 45/14(a)(2)

 

Issues of joint custody, visitation, child support, payment of medical expenses, etc. are not automatically decided by the V.A.P. Unmarried parents should not expect the Illinois Department of Public Aid to address these issues. The better course is to not sign the V.A.P. and instead go to court and address all issues and process them through the court system. By doing so, they will also have the opportunity to address issues of joint custody, visitation, child support, medical insurance coverage, and other issues.

 

Rescinding and Challenging a V.A.P.: Once the V.A.P. has been signed, it can quickly become difficult to undo. There are only two ways to undo a V.A.P.: "rescission" and "challenge." Illinois law says that a V.A.P. may be rescinded, but the time frame for doing so is quite short.

 

A V.A.P. may also be challenged. The only permissible arguments are fraud, duress, or mistake. Again, the challenge must be brought within a very tight time frame. A father who signs a V.A.P. must file his case using a specific part of Illinois law. Failure to refer to the correct part of the law can prove disastrous. Consider the case of Romel Smith: his girlfriend gave birth, lied when she told him he was the father, he signed the V.A.P. and then went off to the military. He later had his doubts as the child bore little resemblance to him. A DNA test later revealed that he was not the father and he immediately filed (on his own – not with an attorney) a court case. Unfortunately, Romel's case didn't refer to the right subsection of Illinois law. Even though he had a DNA test PROVING he was not the father, the court refused to undo the V.A.P. and he's now paying child support for a child that isn't his (he'll keep paying, too, until at least October, 2015). Because poor Romel Smith used the wrong section of the law, in his case, DNA stands for "Does Not Apply."

 

It has been said that the V.A.P should really be called the "Father Forever Form." This is not true. There are ways to challenge a V.A.P.  If you signed a V.A.P. but now think maybe you were lied to or that you're really not the father, call me to discuss how to right the wrong. Act quickly – there is a time limit. Delay can only bring disaster.

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