Children deserve to have both parents in their life. When one parent (always the father) will not readily admit to parentage, it is sad for everyone involved. But, that parent may have good cause to not admit to parentage of a child. Furthermore, everyone needs to find out who the child’s real parent actually is…and the Illinois Parentage Act of 2015 has a whole system to determine who, exactly, is a child’s parent.
A Woman’s Presumed Parentage Of A Child In Illinois
If you are a woman, it may seem very obvious that you are a child’s mother…if the child came out of your body, that child is your child.
Illinois law agrees (except in the case of a surrogate pregnancy and adoption).
“The parent-child relationship is established between a woman and a child by:(1) the woman having given birth to the child, except as otherwise provided in the Gestational Surrogacy Act ;(2) an adjudication of the woman’s parentage;(3) adoption of the child by the woman;(4) a valid gestational surrogacy arrangement that complies with the Gestational Surrogacy Act or other law; or(5) an unrebutted presumption of the woman’s parentage of the child under Section 204 of this Act.” 750 ILCS 46/201(a)
If The Parents Are Married Paternity is Presumed In Illinois
If you are a woman who is married to a woman who gave birth to a child, you are that child’s parent.
“A person is presumed to be the parent of a child if:(1) 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” 750 ILCS 46/204(a)
For men, it is substantially similar. If a man is married before, during or even after the birth of the child, he will automatically be the deemed the father of that child.
“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;” 750 ILCS 46/201(b)
Again, under 750 ILCS 46/204(a) a man married to a woman who gives birth will be the legal father of that child.
Even if the marriage is over and the child is born within 300 days of the divorce or death of the former husband, the child will be deemed that former husband’s child.
“[A person is the presumed parent of a child if] the person and the mother of the child were in a marriage, civil union, or substantially similar legal relationship and the child is born to the mother within 300 days after the marriage, civil union, or substantially similar legal relationship is terminated” 750 ILCS 46/204(b)
If the man later marries the mother and puts himself on the child’s birth certificate, the man will be deemed the father of that child.
“[A person is the presumed parent of a child if] after the child’s birth, the person and the child’s mother have entered into a marriage…and the person is named, with the person’s written consent, as the child’s parent on the child’s birth certificate.” 750 ILCS 46/204
Married people are usually not the ones trying to determine paternity. Usually, unmarried people need to establish that someone is the father of a child.
Unmarried Fathers And Paternity In Illinois
If the mother of a child is unmarried then, for the father,“[t]he parent-child relationship is established between a man and a child by:
(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;” 750 ILCS 46/201(b)
A voluntary acknowledgement of paternity is a form that a nurse will immediately hand a father at the hospital right after he holds the baby for the first time. Most men are full of emotion at that time and gladly sign the Voluntary Acknowledgement of Paternity.
[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
Once that form is filed in Springfield, Illinois…that man is the father of that child in the eyes of the law.
Should the man refuse to sign the Voluntary Acknowledgment of Paternity form then a court must determine that he is the father through an adjudication of paternity.
The man can still at any time admit to being the father of the child and the court will happily declare him to be the legal father of the child.
“A respondent in a proceeding to adjudicate parentage may admit to the parentage of a child by filing a pleading to that effect or by admitting parentage under penalty of perjury when making an appearance or during a hearing.” 750 ILCS 46/616(a)
If no admission of paternity is forthcoming…the court is going to order genetic testing.
“As soon as practicable, a court…shall order or direct the mother, child, and alleged father to submit to deoxyribonucleic acid (DNA) testing to determine inherited characteristics.” 750 ILCS 46/401
“If the genetic testing results indicate that the alleged father is not excluded and that the combined paternity index is at least 1,000 to 1, and there is at least a 99.9% probability of paternity, the alleged father is presumed to be the father, and this evidence shall be admitted.” 750 ILCS 46/404(c)
If the alleged father refuses to participate in the genetic test…he will simply be declared the father in absence of evidence to the contrary.
“If any party refuses to submit to genetic testing, the court may resolve the question of paternity against that party or enforce its order if the rights of others and the interests of justice so require.” 750 ILCS 46/401
“If an individual whose parentage is being determined declines to submit to genetic testing ordered by the court or administrative agency, the court or administrative agency may adjudicate parentage contrary to the position of that individual.” 750 ILCS 46/615(b)
How To Establish Paternity When Someone Else Has Been Deemed The Father Of A Child In Illinois
If someone else has already been declared the father of a child, the first step to establishing the correct father is declaring that the other father is NOT the parent.
“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…After a presumption [of paternity] 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.” 750 ILCS 46/205(a)
You can only ask that a man be determined to be NOT the father within 2 years of when you should have suspected (which is almost always going to be the date of birth) that the presumed father was not, in fact, the actual father.
“An action to declare the non-existence of the parent-child relationship brought under subsection (a) of this Section shall be barred if brought later than 2 years after the petitioner knew or should have known of the relevant facts.” 750 ILCS 46/205
The only way to establish that someone is NOT the father of a child…is with a genetic test.
“The parentage of a child having an adjudicated parent may be disproved only by admissible results of genetic testing, or other means, excluding that person as the parent of the child or identifying another person as the parent of the child.” 750 ILCS 46/617
If the current father has been in the child’s life as a positive force, there will be a strong bias in favor of that father and against the interloper.
“[W]here there is a substantial father-child relationship and the father has provided the child with consistent emotional and financial support, an attempt to undo a determination of paternity is potentially devastating to a child who has considered the man to be the father” In re Marriage of Kates, 761 NE 2d 153 – Ill: Supreme Court 2001 (citations and quotes omitted)
Can You Determine Parentage Before A Child Is Born In Illinois?
Questions about paternity are vexing but you cannot officially determine the parentage of a child before they are born. But, you can start your investigation while the mother is still pregnant.
“A proceeding to establish parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child. The following actions may be taken before the birth of the child:
(a) service of process;(b) the taking of depositions to perpetuate testimony; and(c)…collection of specimens for genetic testing.” 750 ILCS 46/612
If you need to get your child’s father to live up to his responsibilities or you need to establish for a fact that you are not a child’s father, contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Illinois family law attorney.