Paternity Challenging

When Can Paternity Be Challenged as Part of a Divorce in Illinois?

Video by Attorney Kevin O'Flaherty
Article written by Illinois Attorney Kevin O'Flaherty
Updated on
October 9, 2019

In this article, we explain when paternity can be challenged as part of a divorce in Illinois.  We answer the questions”what is a ‘presumed father’ in Illinois?” and “how long does a married father have to challenge paternity in Illinois?”

For an overview of Illinois paternity law, check out our article: Illinois Paternity Law Explained.

A reader asked the following question:

Question: What if the woman was raped during a time in which her and her spouse were trying to conceive and the couple agreed to not take any measures that may terminate a pregnancy and BOTH agreed that regardless of which sperm actually fertilized the woman's egg, the baby was what both parties badly wanted. So with no clue who the rapist is and the woman's spouse accepting the child as none other than his very own and signing the birth certificate is there a way he could get out of having to pay child support once the woman is forced to leave him due to his drug addiction?

Answer:  When a child is born to a woman who is married, the husband is presumed to be the father.  A “presumed father” has two years to file a petition to establish the non-existence of a father-child relationship after discovery of facts that would lead him to believe that he is not the father.  

What is a Presumed Father in Illinois?

A man is a “presumed father” in Illinois if:

  • He is married to the mother when the child is born;
  • His marriage to the mother was terminated within 300 days prior to the birth of the child;
  • 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;
  • He married the mother after the child's birth, and he is listed as the child's father on the child's birth certificate.

The bottom line is that if a child is born during or within about a year of the end of a marriage, the husband is considered the “presumed” father.

How Long Does a Married Father Have to Challenge Paternity in Illinois?

A presumed father may challenge his or her own paternity within 2 years of the discovery of relevant facts that would lead a reasonable person to question paternity.  This is generally the rule that applies to children that are involved in a divorce.  If a couple is divorcing, the father may only file a petition to establish the non-existence of a father-child relationship with respect to the children involved if he learned of facts that would lead him to question paternity less than two years prior filing the petition.  

A divorcing husband that has known of questionable paternity for more than two years prior to the divorce cannot simply challenge paternity because the divorce is occurring.  Similarly, a husband who has not learned any new facts that would call paternity into question cannot challenge paternity as a litigation tactic in the divorce.

In answer to the reader question, whether the father in question can challenge the existence of the father-child relationship depends on whether two years have passed since the husband learned that the child was not his.  If so, he may not challenge paternity and will be responsible for child support.  If not, he will have the opportunity to file a petition to establish the non-existence of a father-child relationship.  

If a married couple wishes to have the husband raise a child that they know is not his, it is best to have the husband legally adopt the child rather than simply agree to treat the child as his own.

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