We all know that to find out if a child is yours or not is simply a matter of taking a DNA test. But how do you establish that legally in Illinois that you are not the father?
The first step is to determine if legally you automatically presumed to be the father.
750 ILCS 46/201 lists out how you can be presumed to be the father.
“The parent-child relationship is established between a man and a child by:
(1) An unrebutted presumption of the man’s parentage of the child under Section 204 of the this Act;”
(2) An effective voluntary acknowledgment of paternity by the man under Article 3 of this Act; unless the acknowledgment has been rescinded or successfully challenged;
(3) An adjudication of the man’s parentage;”
Let’s work through each one of these.
750 ILCS 46/204 states that “A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship…”
So, if you’re married to a woman and she has a baby the child is yours so long as the presumption is unrebutted (not challenged).
If you weren’t married to the mother of the child, you may have signed a Voluntary Acknowledgment of Paternity. This is a special form that makes you the father if you are not married to the mother. Contrary to popular belief, whoever is listed (or not listed) on the birth certificate as the father has no bearing whatsoever on the parentage of the child.
“a valid voluntary acknowledgment filed with the Department of Healthcare and Family Services, as provided by law, is equivalent to an adjudication of the parentage of a child and confers upon the acknowledged father all of the rights and duties of a parent.” 750 ILCS 46/305(a)
Finally, “an adjudication of the man’s parentage” is a legal way of saying “a judge said you’re the father.” This often happens after a mother testifies that she had sex with the alleged father and no one else during the period nine months prior to the birth of the child. If the alleged father does not come forward and challenge that allegation, then the court treats it as fact and adjudicates that the man is the father.
750 ILCS 46/205 tells us exactly how to challenge paternity. “(a) An action to declare the non-existence of the parent-child relationship may be brought by the child, the birth mother, or a person presumed to be a parent under Section 204 of this Act. Actions brought by the child, the birth mother, or a presumed parent shall be brought by verified complaint, which shall be designated a petition. After a presumption under Section 204 of this Act has been rebutted, parentage of the child by another man or woman may be established in the same action, if he or she has been made a party.”
“A person challenging a presumption under Section 204 of this Act may rebut the presumption with clear and convincing evidence.” 750 ILCS 46/206
That “clear and convincing evidence” is always a DNA test. A DNA test from Walgreens or Amazon will not be sufficient. The statute lays out the strict requirements that an expert must prepare a report. In Cook county, the court appoints a DNA tester. You and the child go to the tester on separate days to take a DNA sample and then the tester issues the report directly to the judge. On the next court date the judge reveals the results and makes a ruling as to paternity.
There is a time limit on when you can when you can ask for a DNA test. “An action to declare the non-existence of the parent-child relationship…shall be barred if brought more than 2 years after the petitioner obtains actual knowledge of relevant facts.” 750 ILCS 46/205(d).
So, if you have suspicions or should have had suspicions that you are not the father, then you need to ask for a DNA test within 2 years of those initial suspicions. Typically, this comes as news to men who divorce their wives and then question if their almost grown children were even their children at all. The courts abhor breaking up a parent-child relationship even if the child is discovered to not be the biological child of the father.