What Is A Voluntary Acknowledgment Of Paternity In Illinois?
How is paternity determined in Illinois? While it may be obvious as to who is the mother of a child (the woman who gave birth to that child) it is not 100% certain who is the father of a child. Our society has decided it is not necessary for every child to undergo a DNA test to determine who is the father. Instead, in Illinois, we just declare the husband of the woman who gave birth to the child to be the father (unless he disputes).
But, 40% of women in Cook County, Illinois have a child without being married at the time. How do we determine the fathers of those children? Simple, we just ask them to acknowledge they are the father.
Determining Parentage If You’re Not Married In Illinois
The world, thankfully, is not the Maury Povich show. Most men are happy to acknowledge that they are the father of a child whether they are married to the mother or not. So, in Illinois, these men hold their new born babies at the hospital and then are presented with a particular form, the Voluntary Acknowledgment of Paternity, by a friendly nurse. Flush with emotion, most men gladly sign the form thinking it’s some perfunctory detail.
Signing the Voluntary Acknowledgement of Paternity (also known as a VAP) is not a detail, the Voluntary Acknowledgement of Paternity is what determines paternity in Illinois.
“”Determination of parentage” means the establishment of the parent-child relationship by the signing of a voluntary acknowledgment” 750 ILCS 46/103(h)
“The parent-child relationship is established between a man and a child by… an effective voluntary acknowledgment of paternity by the man” 750 ILCS 46/201(b)(1)
“Voluntary acknowledgment. A parent-child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment” 750 ILCS 46/301
“[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
You know it’s serious when four separate sections of the statute state that you are automatically the father if you sign the Voluntary Acknowledgment of Paternity.
The Voluntary Acknowledgment of Paternity is not a trick. It says on every Voluntary Acknowledgment of Paternity “that the signatories understand that the voluntary acknowledgment is the equivalent of a judicial adjudication of parentage of the child” 750 ILCS 46/302(a)(5)
What If You Don’t Sign the Voluntary Acknowledgment Of Paternity In Illinois?
If a man won’t sign the Voluntary Acknowledgment of Paternity, he can still be determined to be the legal father.
“”Determination of parentage” means the establishment of the parent-child relationship by the signing of a voluntary acknowledgment…or adjudication by the court” 750 ILCS 46/103(h)
“The parent-child relationship is established between a man and a child by…an adjudication of the man’s parentage” 750 ILCS 46/201(b)(3)
The adjudication of parentage is a court’s ruling which determines who is the father. This ruling has the full power of law.
If you’re in court to determine parentage all of the civil procedure rule, as in any civil case, must be followed. There must be a filing of parentage, service of a summons on the presumed father, a court date and then a hearing conducted according to the Illinois Rules Of Evidence.
A person can simply admit to being the father in court and, thus, avoid signing the Voluntary Acknowledgment Of Paternity.
“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 the presumed parent does not admit to being the father AND does not appear in court, the judge can simply take the mother’s testimony as to who she had sex with 9 months prior to the birth of the child. Without rebuttal, this is enough evidence to determine parentage.
Because the standard of proof for parentage is so broad and simple, the standard for disproving parentage is very specific and strict.
“Rules for adjudication of parentage. The court shall apply the following rules to adjudicate the parentage of a child…[t]he 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
A DNA test is the only way you can disprove that you are the father of a child if you are sufficiently accused of being in the right place and the right time 9 months before the child was born.
How Do You Contest A Signed Voluntary Acknowledgment Of Paternity in Illinois?
If you did sign the Voluntary Acknowledgment Of Paternity and now are having second thoughts as to whether you are the father…you have an uphill battle. But, if your timing and your evidence is right, it can be done.
“A signatory may rescind a voluntary acknowledgment… by filing a signed and witnessed rescission with the Department of Healthcare and Family Services as provided in Section 12 of the Vital Records Act, before the earlier of:
(a) 60 days after the effective date of the voluntary acknowledgment” 750 ILCS 46/307
So, 60 days after signing a Voluntary Acknowledgment of Paternity, you can file a different form and you’re not longer the father.
60 days after filing the Voluntary Acknowledgment of Paterinty, there are no more forms to sign. You must go to court to deny your parentage of the child.
“Challenge after expiration of period for rescission. After the period for rescission under Section 307 of this Act has expired, a signatory of a voluntary acknowledgment or denial may commence a proceeding to challenge the voluntary acknowledgment” 750 ILCS 46/308
Challenging a finding of paternity requires proof.
“A voluntary acknowledgment…may be challenged only on the basis of fraud, duress, or material mistake of fact by filing a verified petition under this Section within 2 years after the effective date of the voluntary acknowledgment” 750 ILCS 46/309
Fraud is “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Black’s Law Dictionary. 8th Ed. (2004)
So, any lie or misrepresentation that induced someone to sign a Voluntary Acknowledgment of Paternity, would be the basis for a claim of fraud. This could be as simple as “You’re the father.” This is an excellent defense. The other defenses are not as viable.
Duress is “any unlawful threat or coercion used… to induce another to act [or not act] in a manner [they] otherwise would not [or would]”. Black’s Law Dictionary. 6th Ed. (1994)
It’s unlikely that duress would cause someone to sign a Voluntary Acknowledgment of Paternity. If a shotgun is involved…a wedding will be, too, not just signing a VAP.
A mistake of material fact does not mean the fact that the child was not yours is a mistake. A mistake of material fact refers to the understanding of the parties as to the terms of the contract. Any signed document that incorrectly records what the signatories intended is a mistake of material fact. If the parties intended to agree that the child was one of the parties’ father…then he is the father…whether he is the father or not. So, this is not a good defense.
Furthermore, a challenge to a Voluntary Acknowledgment of Paternity can only be brought within 2 years of its signing.
Mind you, the Voluntary Acknowledgement of Paternity can be challenged by the mother as well for all of the above reasons under all of the same terms. In my experience, this never seems to happen. A determination of paternity, in Illinois, is always challenged by the signor or some other man who believes he is the father.
Does A Birth Certificate Determine Who The Father Is In Illinois?
No. It’s the married father, a judicial adjudication or the Voluntary Acknowledgment of Paternity that determines who the father of a child is in Illinois.
The birth certificate does determine paternity for other states and the designation of “father” is confusing. If a man is improperly designated as a child’s father both legally and on the birth certificate, he can deny his paternity both legally and, subsequently, as a matter of thoroughness on the Illinois birth certificate.
“At the conclusion of a proceeding to challenge a voluntary acknowledgment…the court shall order the Department of Public Health to amend the birth record of the child, if appropriate.” 750 ILCS 46/309(e)
If you have signed a Voluntary Acknowledgment of Paternity in Illinois or are thinking of signing one…or are thinking of challenging one give me a call and speak to an experienced Chicago family law attorney.