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:
- The father’s knowledge of the circumstances of the child’s birth.
- The father’s previous willingness to help support the child.
- 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.
- The reasons that the mother did not file the parentage action sooner.
- 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.
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.