How To Establish Paternity By Consent Of Both Parents At The Time Of Child Birth

When a child is born to parents who are not married, hospitals and midwives are required by the Illinois Vital Records Act to provide the parents with the following forms that will allow the parents to simply and easily establish paternity by mutual consent, assuming that both parents agree.  These forms include:

• A petition to declare paternity by consent; and 
• An agreed order to be entered by the court in which the petition is filed, which will establish paternity.
• If the parents are in agreement about paternity, they can execute these forms and deliver them to the clerk of the circuit court.  The judge will then enter the agreed order without requiring the parents to appear in court. 

If a "presumed father" (defined above) exists and is different from the father consenting to paternity, either the "presumed father" must sign the petition documents, or the mother must submit an affidavit testifying that she has provided notice to the presumed father according to the requirements set forth in the Illinois Parentage Act.  Our Elmhurst paternity attorneys will be happy to assist you in preparing and filing your consent paternity forms. 

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Our Elmhurst Paternity Lawyers Will Represent You In Contested Paternity Suits 

Who can file a contested paternity suit?

A paternity suit to establish a father-child relationship may be filed by the child, the mother, anyone claiming to be the child's father or any individual or government agency that is providing financial assistance to the child. 

‍By contrast, only the child's mother or the child's "presumed father" have standing to file suit to establish the non-existence of a father-child relationship.   

When can a contested paternity suit be filed?

Contested paternity suits can be filed before the birth of the child.  However, all of the proceedings will be stayed until the child is born, except for depositions to preserve evidence and blood tests. 

‍Suits to establish the existence of the father-child relationship may be filed until the child reaches the age of twenty.  However, the statute of limitations bars suits to establish the non-existence of the father-child relationship once two years have passed since the time that the father obtains knowledge of the relevant facts. 

How Is A Paternity Suit Initiated?

In order to initiate a paternity suit, the petitioning party must file a petition to determine paternity in the circuit court of any county where any party to the suit resides.  The petition must then be served upon the responding party, along with a summons requiring him or her to appear in court on a particular date.  

Who represents the child's interests in a contested paternity suit?

The child's legal guardian can represent the child in a contested paternity suit.  However, the court has the discretion to appoint a guardian ad litem.  A guardian ad litem is an attorney appointed by the court to represent the child's best interests in the case. 

If There Is No "Presumed Father"

If there is no "presumed father," the existence or absence of a father-child relationship must be proved by the "preponderance of the evidence," meaning more likely than not.  

‍If there is a "presumed father"If there is a "presumed father," the presumption that this person is the father requires "clear and convincing evidence" to rebut, a higher standard than the preponderance of the evidence. 

After the death of an alleged parent

If a party seeks to prove paternity after the death of a parent (usually for the purpose of inheritance), clear and convincing evidence is also required. 

Voluntary acknowledgment 

If there is a Voluntary Acknowledgment of Paternity, there is a presumption of paternity that will become conclusive and cannot be rebutted if the acknowledgment is not rescinded within 60 days of signing or the date that the paternity suit is filed, whichever comes first.  

‍DNA Testing

‍Any party to a paternity suit, or the judge, may request that another party take a DNA test.  If a party from whom a test is requested refuses to take the test, it is extremely likely that the judge will rule against them in the case. 

An expert will be appointed by the judge to perform the DNA test.  The parties may hire their own additional experts as well. If all of the experts are in agreement that the alleged father is not actually the father according to the DNA tests, the paternity suit will be dismissed.  If the experts disagree, the testimony of all of the experts will be considered along with any other evidence presented by the parties. 

‍If the DNA test does not exclude the father from paternity, then the weight of the test as evidence will depend on whether the test shows a likelihood of paternity above a certain threshold.  If the likelihood is below this threshold, no presumption of paternity will arise, and the test results will be considered along with the other evidence.  If the likelihood is above this threshold, a presumption of paternity will arise, which can only be rebutted by clear and convincing evidence. 

‍Our experienced Elmhurst paternity lawyers will arrange for expert testimony to give you the best possible chance of winning your contested paternity case. 

Who Is Responsible For Attorney Fees and Court Costs in a Paternity Suit?

The court will order one party to pay another party's attorney fees and court costs in a paternity suit if the party seeking payment can prove that he or she is unable to afford the cost of the case and that the other party is able to afford it