Causes of Action Related to Paternity
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.
Establishing Paternity By Consent at Birth
The Vital Records Act (410 ILCS 535/1, et seq.) provides that certain forms must be presented to non-married parents at the hospital upon the birth of a child, which allow the parents to facilitate establishing paternity by mutual consent. These forms include:
- An agreed order to establish paternity by consent, and reserve issues of child support until a later date; and
- A verified petition to declare paternity.
If there is a presumed father other than the father signing these forms, the parents must obtain his signature as well, or submit an affidavit of the mother stating that she has complied with all required notice provisions of the Illinois Parentage Act.
Contested Paternity Suits
A paternity suit to establish the existence of a father-child relationship can be filed by the mother, the child, anyone claiming to be the child's father, any person or agency with custody of the child, or any person or agency providing financial assistance to the child.
A suit to declare the non-existence of a father-child relationship may only be filed by the child's natural mother, the "presumed" father of the child (described below), or the child.
These actions can be filed while the mother is still pregnant. Depositions can be taken and blood tests ordered before the child is born, but the rest of the proceedings will be delayed until the birth of the child.
The child will be represented by his or her legal guardian. In some situations, the court may appoint an attorney, called a guardian ad litem, for the purpose of representing the child's interests.
The paternity case is initiated by the petitioning parent filing a petition to determine paternity and serving the responding parent with a summons. Suit may be filed in the circuit court of any county where any party resides.
Statute of Limitations
Paternity suits to establish the existence of the father-child relationship may be filed until the child turns 20 years old. Actions to declare the non-existence of a parent-child relationship must be filed within two years after the father obtains knowledge of the relevant facts.
If the person that the petition alleges to be the father is not the statutorily "presumed" father, the "presumed father must be served with certain notices required by the Illinois Code of Civil Procedure and the Illinois Supreme Court Rules.
The Presumed Father
The Illinois Parentage Act provides that a man is the "presumed" father of the child if:
- The child was conceived during a marriage between he and the child's mother; or
- He and the child's mother married the child's mother after the child's birth, and he was named as the father, by written consent, on the child's birth certificate; or
- He and the child's mother have executed an "acknowledgement of paternity" pursuant to the rules set forth by the Department of Healthcare and Family Services; or
- He and the child's mother have signed an acknowledgement of parentage.
Presumptions of Paternity
The petitioner in a paternity action bears the burden of proving paternity or absence of paternity by a preponderance of the evidence, meaning that the allegations in the petition are more likely than 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.
The court or any party to a paternity action may request DNA testing. 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, but each party 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.
If the tests do not exclude the father from paternity, the weight of the test will depend on the probability of paternity shown by the test. If the test shows the "combined paternity index" to be be less than 1,000 to 1, the test will be considered along with the other evidence, with no presumption of paternity arising. If the "combined paternity index" is greater than 1,000 to 1, the presumption of fatherhood arises, and can only be rebutted by clear and convincing evidence.
Attorney Fees and Costs
The court has discretion to order one party to a paternity to suit to pay some or all of the other party's attorney fees and costs if the party seeking attorney fees demonstrates that he or she is financially unable to pay the fees and costs, and that the other party is in fact able to pay.
In a paternity action, child support is treated as in a divorce case with two exceptions. You can read about how child support is typically handled in our articles: Child Support Explained, and Changes to Child Support Laws for 2017..
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, retroactive 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.
Child custody in a parentage case is determined according to the same standards as in a dissolution case, which you can read about in our articles: Factors Courts Consider in Determining Child Custody Issues, and Changes to Illinois Divorce Law for 2016. The rights of unmarried parents are the same as those who were previously married, except to the extent that the "best interests" of the child are found to be different based on the lack of a prior marriage.
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