When a married woman has a child, Illinois law automatically assumes the woman’s husband is the child’s father (unless proven otherwise). When a child is born out of wedlock, however, the father does not automatically have a legal relationship with the child—even if the two parents live together or plan to marry.
Importance of Paternity in Illinois
Paternity affects important family law areas including child custody and visitation, child support, and the child’s right to receive an inheritance from the father. Establishing paternity has significant consequences for everyone in the family.
For the Mother
If the father is not supporting his child, the child’s mother may file a paternity lawsuit in order to force him to pay child support.
For the Father
Without establishing paternity, the father does not have the right to ask for parenting time, child custody, or visitation. In turn, the child does not have a right to receive financial support from the father. Fathers may wish to establish paternity in situations where they are being denied custody or visitation of their children. Fathers also may establish paternity to add their name to the child’s birth certificate.
For the Child
Ultimately, establishing paternity is for the benefit of the child. When paternity is established, the child becomes legally entitled to many financial benefits from the father, including:
- Health insurance
- Life insurance
- Veteran’s benefits
- Social Security benefits
- Medical history
Paternity may be established in one of two ways. If the parents agree and can cooperate, it can be established voluntarily. Otherwise, it can be established involuntarily, through the legal system.
When both parents agree on paternity, they may complete the Voluntary Acknowledgment of Paternity (VAP) form and file it with the Department of Healthcare and Family Services. The easiest way to do this is to request it from the hospital when the child is born. However, the VAP can be completed and submitted at any time.
If you are not sure about your child’s paternity, do not sign the VAP. You have a right to a genetic paternity test, and you give up this right when you sign a VAP. Paternity tests compare the child’s and father’s DNA, which is taken by swabbing the inside of the cheek. They are accurate and painless, and they will help you be certain about who the child’s biological father is.
If the parents are not able to establish paternity voluntarily, either parent may file a petition for an Adjudication of Parentage, also known as a paternity lawsuit. Whether the mother files or the father does, the court will most likely order a DNA test to confirm parentage.
Denying Paternity in Illinois
If either parent comes to believe that paternity was established incorrectly, they may dispute it. A VAP can be withdrawn within 60 days of its effective date. After the 60-day period, a judge must determine if the VAP will be withdrawn or not. Circumstances that could warrant a VAP withdrawal include:
- Learning that the DNA testing was flawed, tampered with, or fraudulent
- Proof of the mother’s infidelity
- Proof of infertility or sterility
It can be devastating to learn that you have been supporting a child who is not biologically yours. Although misattributed paternity is sometimes an innocent mistake, oftentimes it is not. Some mothers deliberately mislead men into believing that a child is theirs for the purposes of obtaining financial support. This is known as paternity fraud.
In cases of alleged paternity fraud, the legal father must challenge the VAP within two years of the date it went into effect. When seeking freedom from a child support order due to paternity fraud, the legal father must prove that:
- He is not the biological father (using a DNA test)
- The mother knew he was not the father when he signed the VAP
If at all possible, during the course of the proceedings, the child’s true biological father should be identified, as well.
Paternity Statute of Limitations
In Illinois, you can file suit to establish paternity of a child until the child turns 20 years old. To sever a parent-child relationship, your petition must be filed within two years of obtaining the relevant information.
Child Support in Illinois Paternity Cases
Illinois courts treat child support in paternity cases largely the same as they do in divorce cases. However, there are two key exceptions. Both arise from the assumption that in a divorce, the father contributed to the care of the child during the marriage. This may not be the case in a paternity suit.
The first exception is that in paternity suits, the court may order the father to pay for the mother’s birthing and hospital expenses. This is only possible if the child is less than two years old at the time of the suit.
The second exception concerns retroactive child support, which is rarely awarded in a divorce. In paternity cases, on the other hand, child support may be ordered retroactively, all the way back to the child’s birth. Retroactive child support may be awarded at any time until the child turns 20 years old.
Child Custody in Illinois Paternity Cases
Although establishing a paternal relationship in Illinois may also require a parent to pay child support, entering a VAP will not automatically guarantee the father any rights to child custody or visitation. These matters, known in Illinois as “decision-making responsibilities” and “parenting time,” are determined by the court.
Legal Counsel at Every Step of the Paternity Process
Establishing parentage can be a stressful and emotional process. However, it is important to protect your child’s rights and your legal rights as a parent. For the best results possible in your paternity matter, enlist the services of a strong and caring advocate.
The skilled paternity lawyers at Schierer & Ritchie help Peoria parents secure their natural parental rights and provide legal counsel at every step of the paternity process. To contact a Peoria family law and paternity lawyer, call the law offices of Schierer & Ritchie today at (866) 248-8005.