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establishing paternity in Illinois

Establishing Paternity In Illinois

establishing paternity in IllinoisEstablishing paternity for a child can be a stressful, emotional event. Despite the drama portrayed about the situation by afternoon talk shows, the need to establish a legal connection between a father and a child is a common situation. Whether you are the mother of a child seeking to have a father acknowledge his responsibility, or a father seeking to become a part of the life of a child, Illinois offers legal remedies for both situations.

The simplest way that paternity can be established is by acquiring consent from both parties. The mutual consent of both parties at the time of birth can establish paternal responsibility in the consenting father. The Vital Records Act requires the hospital where the child is delivered to present non-married parents with certain forms establishing the paternity by mutual consent. [1] The father of the child must sign a certified petition declaring paternity, and both the mother and the father must sign the Voluntary Acknowledgement of Paternity, establishing paternity and reserving the issue of child support until a later date. [2] Once both parties sign the respective forms, they can be delivered to the clerk of the court and a judge can enter the agreed order, legally establishing paternity.

If both parties do not consent, then the party seeking to establish paternity can file a parentage suit. Paternity suits can also be initiated while the mother is still pregnant with the child that is the subject of the suit.

If paternity of the child is contested, the petitioning parent can file a petition to determine paternity in any county where either of the party resides and the responding parent will be served with a summons. Parents are not the only ones who may file a paternity suit to establish the existence of a father-child relationship; suits can be filed by anyone claiming to be the child’s father, any person or agency with custody of the child, or the child themselves. [5]  When a paternity suit is filed, the petitioner, or the person seeking to establish the presence or absence of paternity, bears the burden of proving their claim. If a suit aims to declare the non-existence of a father-child relationship the suit mat only be filed by the child’s mother, the “presumed” father of the child, or the child themselves. [6] A man is considered the “presumed” father in only select situations in the state of Illinois. The Illinois Parentage Act defines a father to be “presumed if, the man is married or in a substantially similar relation with the mother, if his marriage to the mother was terminated within 300 days prior to the child’s birth, or if he married the mother after the child’s birth and is listed on the child’s birth certificate as the father. [7]

Paternity suits  typically require DNA testing. Courts, or any party participating in the suit. may request DNA testing. [8] DNA may be ordered or requested from the potential father or the child of issue to the suit, depending on which parent is seeking to establish paternity. If the party from whom DNA testing is requested refuses to submit to the test, the court may decide against them. [9] Courts will select their own expert to test the DNA sample from the requested party. Although the court selects an expert, each party to the suit may also select an expert to perform the test and each of the results will be compared and reviewed by the court.  [10] The determination of if a potential father is excluded from paternity depends upon the probability of paternity shown by the test. If the test shows the “combined paternity index” is less than 1,000 to 1, then there is no presumption of paternity. [11] If the test shows the index to be greater than 1,000 to 1, then it is presumed the potential father is the biological parent of the child. [12]

The statute of limitations for paternity suits to establish the existence of a father-child relationship is the twentieth birthday of the child. [13] If the action aims to disprove the existence of a father-child relationship, the suit must be filed within two years after the father obtains knowledge of the relevant facts. [14]

If paternity has been established, by either consent or the court’s findings, then child support may be set requiring one or both of the parties to contribute to the minor child’s expenses. Parentage cases approach child support differently than divorce cases. For example,  if the paternity action is brought within two years of the child’s birth, the father may be required to contribute to expenses related to the mother’s pregnancy. [15] Retroactive child support is also assigned for different reasons in a paternity action than a divorce action. The court decides the issue of retroactive child support based upon the father’s  knowledge of the circumstances of the child’s birth, previous willingness to help support the child, extent of  previous information regarding the child’s needs and to which his help was sought,  the mother’s reasoning for not bringing the action sooner, and the extent to which the father was prejudiced by the mother’s delay.  [16] These factors help the court ensure the father contributes to the child from the moment of birth.

If the parties cannot agree on a parenting time schedule or the allocation of significant decision making (formerly known as custody), the court may appoint a guardian ad litemto represent the child’s best interest. [3] A guardian ad litemis a licensed attorney that does not represent either of the parties to the suit and provides reports or other recommendations to the court about what decision would be in the best interest of the child. [4]

Paternity suits can be an emotional, extended legal situation regardless of which side of the issue an individual is on. The complex legalities of establishing paternity often require more time than any individual can take on alone.

If you have questions regarding how to establish or contest  the paternity of a child, or any other family law action, contact Sherer Law Offices.

The information provided on this site is not, nor is it intended to be, legal advice.  You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, emails, and communications.  Contacting our offices does not create an attorney-client relationship.  Please do not send any confidential information to us unless and until such time as an attorney-client relationship has been established.

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[1]410 ILCS 535/1

[2] illinois.gov/hfs/ChildSupport/FormsBrochures/Pages/hfs3282.aspx

[3]cookcountycourt.org/ABOUTTHECOURT/CountyDepartment/DomesticRelationsDivision/ChildRepGuardianAdLitemGAL.aspx

[4] id.

[5] 750 ILCS 46/201

[6] 750 ILCS 46/205

[7] 750 ILCS 46/204

[8] 750 ILCS 46/402

[9] 750 ILCS 46/401

[10] 750 ILCS 46/407.

[11] 750 ILCS 46/403

[12] id.

[13]     750 ILCS 46/607

[14] 750 ILCS 46/608

[15] 750 ILCS 46/802

[16] 750 ILCS 46/801

750 ILCS 46/205

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