Paternity / Parentage (DNA Testing) Lawyers - Joliet, IL
Illinois recognizes that each child has the right to the physical, mental, emotional, and financial support of his or her parents. Each child has these rights, whether their parents are married or unmarried.
Establishing Paternity is important for enforcing rights to parenting time (formally known as visitation). It is also necessary for child support and other financial issues, as well as parental allocation of responsibilities, such as making major regarding the child’s education, extra-curricular activities, health, and religion.
What are the Types of Parenthood?
The Illinois Parentage Act defines four different parent-child relationships, usually between the father and the child:
Adjudicated Parent: a parent who has been determined to be the parent by the court.
Presumed Parent: someone who is presumed to be the parent because of a legal relationship, such as marriage.
Acknowledged Father: a man who established parentage by signing and filing a Voluntary Acknowledgment of Paternity (VAP).
Alleged Father: a man who has been alleged or is alleging that he is the father of the child, but his parentage has not been determined.
How do I Establish Paternity?
For a mother, there is usually is not a problem determining whether or not she is the parent of a child. For Fathers, determining parentage is a bit more complicated. There are three ways to establish paternity in Illinois.
Both parents complete, sign, and file a Voluntary Acknowledgment of Paternity with the Department of Healthcare and Family Services (HFS);
The Department of Healthcare and Family Services' Child Support Services enters an Administrative Paternity Order; or
An Order of Paternity is established and entered by the court.
The last two ways to establish paternity usually arise when the father is contesting whether he is the parent of the child, or does not wish to acknowledge the child.
What is the Voluntary Acknowledgment of Paternity?
A Voluntary Acknowledgment of Paternity is a legal document that establishes paternity for parents who are not married. For unwed parents, in order for the Father's name to be added to the birth certificate, both parents must sign the Voluntary Acknowledgment of Paternity and it has to be filed with the Department of Healthcare and Family Services. A Voluntary Acknowledgment of Paternity does not have to be signed at the hospital and can, in fact, be signed at any time to establish paternity. A Voluntary Acknowledgment of Paternity can be obtained from a hospital, a local child support office, at the County Clerk's office, or at HFS.
Once a Voluntary Acknowledgment of Paternity is signed, it can only be canceled or revoked within sixty days after the effective date of the Voluntary Acknowledgment of Paternity or the date the case is filed, whichever came first. The person seeking to cancel or revoke the Voluntary Acknowledgment of Paternity must complete and file a Rescission of Voluntary Acknowledgment of Paternity with the the Department of Healthcare and Family Services. If sixty days have passed since the Voluntary Acknowledgment of Paternity became effective, a Rescission cannot be filed.
If a Voluntary Acknowledgment of Paternity is signed and not rescinded within the proper time limit the presumption that the person is the parent of the child becomes conclusive. The Voluntary Acknowledgment of Paternity can then only be overcome if the father was under duress, fraud, or there was a mistake of material fact. These defenses to a Voluntary Acknowledgment of Paternity cannot be raised after two years since the Voluntary Acknowledgment of Paternity was signed except under very rare circumstances. If a Voluntary Acknowledgment of Paternity has been signed and filed, DNA testing cannot be done, except for under very rare circumstances.
A Voluntary Acknowledgment of Paternity does not determine parenting time, child support, or parenting responsibility. Parenting time issues, parenting responsibility issues, and child support must be determined by the court. [See PARENTING TIME] A Voluntary Acknowledgment of Paternity cannot establish a parent-child relationship between same sex couples.
If the father’s name is on the birth certificate, does that make him the Father?
If the father’s name is on the birth certificate without his consent, it has no significance. If it was signed consensually, it is evidence of the father’s parentage, but it does not establish paternity. However, in most states, both parents need to sign a Voluntary Acknowledgment of Paternity in order for the father’s name to be put on the birth certificate. The Voluntary Acknowledgment of Paternity, as discussed above, does establish paternity.
How do I obtain an Order of Paternity?
A paternity action to establish a relationship between a father and child can be filed by the child’s mother, the child, anyone claiming to be the father of the child, any person or agency who has legal custody of the child, or any person or agency who is providing financial assistance to the child.
The Petitioner (the one filing the original action) has the burden to prove that the other person is the parent of the child. However, the following presumptions can shift the burden to the responding party:
The person and the mother of the child have entered into a marriage, civil union, or other substantially similar legal relationship, and the child is born to the mother during the legal relationship;
The person and the mother of the child were in a marriage, civil union, other substantially similar legal relationship, and the child is born within three hundred days after the legal relationship is terminated by death, declaration of invalidity of the marriage, or dissolution of the legal relationship;
Before the birth of the child, the person and the mother of the child entered into a marriage, civil union, or similar legal relationship that was in apparent compliance with the law, but was in fact invalid, and the child was born within three hundred days of the relationship being terminated by declaration of invalidity, death, or dissolution of the legal relationship; or
After the child’s birth, the person and the child’s mother have entered into a marriage or similar legal relationship, even if the relationship is or could be declared invalid, and the person is named, with the person’s written consent, as the child’s parent on the child’s birth certificate.
If neither of the above presumptions exist, the Petitioner must prove that the Respondent is the parent of the child.
Who Can Request DNA Testing?
The court or either party can request a DNA test in a paternity action. Normally, the court decides who will do the DNA test. The parties can also do their own DNA testing through an expert, such as a DNA testing facility. However, the parties must beware of the type of test as it needs to be accepted by the court. If the results show that the person is the parent, the case may not be over and both sides may still have to present more evidence. If the results show that the person is not the parent, the case will usually be dismissed.
How Can I Challenge Paternity?
If a child already has a presumed, acknowledged, or adjudicated parent, the Parentage Act imposes strict time limits for when another individual can challenge that parentage and establish a new parentage. Illinois requires an alleged father to challenge parentage within two years of when he knew or should have known that he may be the father of the child.
Establishing Non-Existence of a Parent-Child Relationship
The child, the mother, or a parent presumed to be the parent of a child may bring an action to determine that the presumed-parent is not the child's father. The time-limit for bringing an action to established the non-existence of a parent-child relationship is before two years that the person knew or should have known that that person was not the father.
The attorneys at Henderson & Mehta Law and Mediation are well equipped to guide you through establishing a parent-child relationship as well as parenting time, parenting responsibility, and child support. They are also qualified in helping those who want to establish the non-existence of a parent-child relationship.