Illinois divorce law doesn’t cover unwed parents; they are covered by a separate law. In most ways, unwed parents are treated the same as divorcing parents by Illinois law, but in other ways, the law applies differently to those who never married. Unwed parents facing child support, custody, visitation, or other issues in paternity court should have an attorney who is experienced in both paternity and divorce, to ensure satisfactory results.
Illinois law allows a child’s paternity to be established in three different ways: presumption, consent, or judicial determination.
To Establish Parentage By Presumption:
- In Illinois, when woman who is married either conceives or gives birth to a child, it is presumed that her husband at the time of birth or conception is the father of the child. This is true even when the marriage is invalid.
- If an unwed woman gives birth and marries after the birth, her new husband is presumed to be the father when he is named and has given his written consent- as the father of the child on the birth certificate.
- When an unmarried man in conjunction with the mother of the child signs a V.A.P (Voluntary Acknowledgment of Paternity) voluntarily, the unmarried man is presumed to be the child’s father.
- If the mother of the child is married, which makes her husband a second presumptive father, both the husband and the child’s mother must sign a V.D.P. (Voluntary Denial of Paternity). In addition, the biological father must also sign a VAP. The husband will still be presumed the father unless both the VAP and the VDP are signed.
To Establish Parentage By Consent:
- The V.A.P. (Voluntary Acknowledgment of Paternity) – These forms are presented to allow couples to establish paternity and provide a Notice of Rights and Responsibilities to would be fathers.
- PLEASE NOTE paternity IS established by these forms. SOLE CUSTODY is automatically given to the mother – Issues such as joint custody, child support, and visitation are not decided by the VAP and are not typically addressed by the Illinois Department of Public Aid when they pursue child support.
- There are only two ways to UNDO a VAP (2yrs)
- Rescission – 60 days after the date of acknowledgment is signed.
- Challenge – After 60 days have, individuals can attempt to challenge the acknowledgement being voluntary if he can show that it was obtained by duress, fraud, or a material mistake of the fact. This also must be brought within a certain time frame and under the correct legal statute.
To Establish Parentage by Judicial Determination:
By tradition, unwed parents turn to the courts to establish paternity of a child and address issues of child support, custody, and visitation. In cases that the unwed parents don’t sign the Voluntary Acknowledgment of Paternity at the time of birth, the only way a mother or father can establish the father’s identity is in court. Nearly anyone linked to the child can file this type of case including the mother (even if the child hasn’t been born yet), a man who claims to be or is presumed to be the father, anyone who is financially supporting and has custody of the child, and the child can even file the suit. Notice of the case must be given to the other parent and the papers have to be properly prepared and filed, similar to a divorce case. The filing can be done up until two years past the time the child reached the age eighteen.
Either parent can request a DNA test to determine if the purported father is actually the biological father in paternity cases. However, in many cases, the party who demands the test is required to pay for it or the parties may be required to pay a portion of the cost. The Illinois court has the authority to conclude that the party is the father if he declines to submit to testing. The law is exceedingly technical relating to this, and failing to follow the detailed requirements in their entirety can result in invalidation of the paternity order.
It is especially important to deliver the papers to the other parties correctly. Failing to follow the technical, detailed requirements can result in the case being invalidated and make all of the work put into it a total loss, as well as having severe effects on things in the future such as liability issues and estate inheritances.
The next step is to establish child support. A temporary order for support can be granted during the pending judicial determination of parentage by showing clear and convincing evidence of paternity. The same guidelines used in the Illinois Marriage and Dissolution of Marriage Act are used in setting this amount.
If an action is brought within two years of the child’s birth, the court may require either of the parents to pay the reasonable costs incurred during the time of the pregnancy and the delivery of the child, but not lost wages.
The court may award back support. The question of whether and to what extent back support will be payable is determined on a case-by-case basis. After obtaining a judgment, you may need to use certain procedures to enforce that judgment or have the judgment modified. If paternity has been established by law in another state, Illinois courts will recognize it, regardless of the way paternity was determined.