Tag Archive for: Parentage Rights

Determination of Parentage Under Illinois Law

What is parentage? Why is establishing parentage important? What is the process of establishing parentage or paternity? Find the answers to all your Illinois-paternity questions here. 

In parentage cases, also known as “paternity cases,” the court makes orders that say who the child’s legal parents are. If parents are married when a child is born, the law assumes that the husband is the father and the wife is the mother, so paternity is automatically established in most cases. But for unmarried parents, the parentage of their children needs to be established legally.

Only after paternity is established, allocation of parental responsibilities, parenting time and child support can then be set forth via a Final Allocation of Parental Responsibilities Judgment. While this topic can be very emotional to deal with, you’re not alone. Here’s what you need to know about  Determination of Parentage in the state of Illinois.

Causes of Action Related to Paternity in Illinois

There are several causes of action in Illinois related to paternity, including establishing paternity by consent of the parents, contested paternity suits and suits to establish the non-existence of a father-child relationship. ‍All of these causes are governed by the Illinois Parentage Act of 2015 which deals with issues revolving around children born out of wedlock. In Illinois, certain forms must be presented to non-married parents at the hospital upon the birth of a child, which allow the parents to establish paternity by mutual consent. The forms look like the following:

  • An agreed order to establish paternity by consent, and reserve issues of child support until a later date.
  • A verified petition to declare paternity.

‍If the parents are in agreement regarding paternity, they can deliver these forms to the clerk of court, whereupon the judge will enter the agreed order establishing paternity. ‍If there’s a presumed father other than the father signing these forms, the parents must obtain his signature as well. The Illinois Parentage Act states that a man is the presumed father of the child if any of the following statements are true:

  • He is married to the mother, or in a civil union or substantially similar relationship when the child is born.
  • He was married or in a civil union with the mother, but the marriage was terminated within 300 days prior to the birth of the child.
  • He married or entered into a civil union with the mother after the child’s birth, and he is listed as the child’s father on the child’s birth certificate. 
  • The child was born during or within 300 days of an invalid marriage or civil union into which he and the mother entered in apparent compliance with the law.

Presumptions of Paternity Explained

The petitioner in a paternity action unfortunately bears the burden of proving paternity or absence of paternity by a preponderance of the evidence. This means the allegations in the petition are more than likely not to be true. When there is a “presumed father,” the presumption must be rebutted by clear and convincing evidence, a higher standard of proof than preponderance of the evidence. Clear and convincing evidence is also required if paternity is sought after the death of a parent in order to determine heirship. 

‍A presumption of paternity arising from a voluntary acknowledgment of paternity becomes conclusive if the acknowledgment is not rescinded either within 60 days from signing the voluntary acknowledgement or the date that the paternity suit is initiated, whichever occurs first.  If the presumption becomes conclusive, paternity can only be challenged by the presumed father in the case of fraud, duress, or a mistake of material fact. 

DNA Tests in Illinois Paternity Cases

The court as well as any party involved in a paternity action can request a DNA test. If the party from whom DNA testing is requested refuses to submit to the test, the court will likely decide the case against them.‍ The court will appoint an expert to perform the DNA test. It’s important to note that each party involved has the option to hire an independent expert in addition to the court-appointed expert to perform tests or to testify regarding the court-appointed expert’s credentials.  

If the experts agree that the alleged father is not the natural father the case will be dismissed.  If the experts disagree, the court will weigh the experts’ separate testimony along with other evidence.  

Illinois Paternity Situations & Cases

In a paternity action, child support is treated as in a divorce case with two exceptions. Unlike child support in a dissolution case, if the suit was brought within two years of the birth of the child, the court has discretion to award reasonable expenses related to the mother’s pregnancy. Retroactive child support is also treated differently in a paternity case. 

In a dissolution case, child support may be awarded in certain limited circumstances.  However, in a paternity case, the court may award child support retroactive to the child’s birth, based on the following factors:

  1. The father’s knowledge of the circumstances of the child’s birth.
  2. The father’s previous willingness to help support the child.
  3. The extent to which the father was previously informed of the child’s needs and to which his help was sought in supporting or raising the child.
  4. The reasons that the mother did not file the parentage action sooner. 
  5. The extent to which the father was prejudiced by the mother’s delay in bringing suit.  

The difference between child support in a paternity case versus a dissolution case is, in a dissolution case, the couple was previously married and the father was contributing to the care of the child during the marriage. 

Final Thoughts 

If you find yourself in a paternity battle, and are in need of legal counsel, Masters Law Group can help. Hiring an attorney highly experienced in family law will help you understand your legal options and create a plan for what comes next. 

Masters Law Group LLC focuses on helping clients assert their rights to further the best interests of their children. We help clients put aside their grief and educate them about their options in Parentage as well as Child Support modifications. If you need help with a parentage  case in Illinois, contact us here today to schedule a consultation.

Parentage Rights for Same-Sex Couples

Fortunately for married same-sex couples in Illinois who have children, the Illinois Parentage Act provides the same protections that were once afforded to fathers in a heterosexual marriage. Here’s what you need to know. 

Parents are legally recognized in three ways: through marriage, adoption, and DNA. While same-sex couples may now legally marry throughout the United States, not all states have provided an equal opportunity for gay parents to obtain parental rights, whether through biology, legally recognized partnership, adoption, or other means.

What is Parentage?

In parentage cases, also called “paternity cases,” the court makes orders that say who the child’s legal parents are.

If parents are married when a child is born, there is usually no question about parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is automatically established in most cases.

But for unmarried parents, parentage of their children needs to be established legally.  If there is not an agreement on paternity of a child, the Court can order a DNA test to determine the father.  After paternity is established, allocation of parental responsibilities, parenting time and child support can then be set forth via a Final Allocation of Parental Responsibilities Judgment.

Presumption of Parentage under the Illinois Parentage Act

What is a presumption of paternity under Illinois law, and how does it establish the rights and responsibilities of a parent? Generally speaking, a presumption of paternity refers to situations in which the law says that a person is the child’s presumed parent—typically the father. Matters of paternity—and the presumption of paternity—are governed by the Illinois Parentage Act of 2015 (750 ILCS 46/). That statute defines a “presumed parent” as “an individual who . . . is recognized as the parent of a child until that status is rebutted or confirmed in a judicial or administrative proceeding.”

A presumption of paternity typically happens in cases where there is no direct evidence that the parent is the child’s biological parent, but there are other ways in which that person is presumed to be the parent (and therefore responsible for providing care and support to the child). Situations in which there is a presumption of paternity may include:

  • Individual (presumed parent) married the child’s biological mother or otherwise started a relationship with the child’s biological mother, and the child was born during the relationship;
  • Individual and the child’s biological mother got married, and the child was born within 300 days of the end of the marriage;
  • Individual and the child’s biological mother got married, but the marriage was determined to be invalid, and the child was born within 300 days of the declaration of invalidity of the marriage; or
  • Individual married the child’s biological mother or otherwise started a relationship with the child’s biological mother after the child was born, but the individual is listed (by choice) as the parent on the child’s birth certificate.

Since a presumption means only that parentage is presumed, there are ways either to provide evidence of paternity or to dispute paternity. Presumptions of paternity can be disputed, for example, with DNA evidence and other forms of documentation.

How the Presumption of Paternity Extends to Same-Sex Couples

The Illinois Parentage Act also extends to same-sex couples, including when it comes to the presumption of parentage. Same-sex parents are now also permitted to have both their names on a birth certificate, and there is a presumption that the parents listed on a birth certificate are the child’s parents.

This legal presumption is important when it comes to parenting time issues in a divorce or legal separation. Without this presumption, a parent who wants child custody would have to prove a legal relationship with the child in order to have standing to seek custody. A person who does not have standing cannot prevail in a legal challenge seeking rights to custody or even visitation.

Once parentage has established under any of the criteria set forth in the statute, the parent can be allocated parental responsibility, parenting time, and even be required to pay child support. Like heterosexual couples, the court determines the issues of time-sharing and parental responsibility by considering the best interests of the child. However, if the child is born as part of a surrogacy agreement, there are laws that govern how that situation would be handled.

Lastly, men in a same-sex marriage may still be at a disadvantage even under the revised law because the law does not create a presumption for either man having a child with a woman outside the marriage. Both men would have to adopt the child to gain legal rights.

Contact Masters Law Group

As you can see, same-sex parents can face legal hurdles when determining their parental rights. Illinois parental laws do not discriminate between same-sex and opposite-sex parents; However, some judges may have limited experience with LGBTQ relationships. The attorneys at Masters Law Group use their years of experience and relationships with the local courts to prevent issues and focus on solving problems and achieving the best possible result for our clients.

Each year in the Illinois, thousands of families seek answers to questions regarding divorce, separation, allocation of parental responsibilities, support and other matters of family law. If you have questions about how the Illinois Parentage Act applies to you, contact the experienced attorneys at Masters Law Group here today.