When a couple has children and later go through a divorce, a family court will often create a child support or custody agreement. This issue becomes much more complicated when a child’s parents were never married, but are still going through the process of separation. Determining child support and creating a custody arrangement can be difficult in these situations, especially if a child’s father is required to establish paternity, so if you are going through a divorce or separation, it is important to seek the advice of an experienced family law attorney who can ensure that the interests of both you and your child are protected.
Presumption of Paternity
Paternity is a legal relationship between a father and a child, and in certain situations, can be presumed, including when:
- A child was born during the couple’s marriage;
- A child was born within 300 days after a couple’s marriage or civil union was terminated by death, dissolution, or declaration of invalidity;
- A child was born within 300 days of an invalid marriage; or
- A couple is married after the birth of a child, but the father’s name is recorded on the birth certificate with his consent.
Alternatively, there are three ways to establish paternity in Illinois, including through:
- The signing of an Acknowledgement of Paternity form in the presence of witnesses;
- An administrative order entered by child services; and
- An Order of Paternity issued by a judge.
The department of Health and Family Services (HFS) can establish paternity through an administrative process or by going through state court. When the administrative process is used, HFS is required to:
- Conduct an interview with the mother and obtain her signature on paternity-related forms; and
- Schedule an interview with the alleged father to determine whether he is willing to voluntarily acknowledge paternity or if genetic testing will be required.
If an alleged father fails to attend an interview, HFS can declare him to be the child’s legal father by default.
Voluntary Acknowledgment of Paternity
The simplest way to establish paternity for unmarried couples is to complete a Voluntary Acknowledgement of Paternity (VAP) at the hospital when the child is born. The form must be completed and signed by both parents in front of a witness, who must also sign and date the document in addition to providing his or her contact information. These forms can be completed at any time for a child who is born to unmarried parents.
Either parent can also withdraw a VAP by signing a Rescission of Voluntary Acknowledgement of Paternity form and submitting it within two months of the date that the VAP was signed. After this deadline has passed, a VAP can only be challenged in court on the basis of fraud, duress, or material mistake of fact.
If both parties are unsure of the father’s identity or a man wishes to dispute paternity, a court may require him to take a paternity test. Paternity tests are genetic evaluations that compare the DNA of a child, mother, and alleged father to determine whether a man is a child’s biological father. This is usually done by swabbing the inside of the subject’s cheek. In Illinois, an alleged father is presumed to be a child’s father if a genetic tests shows that the man is at least 1,000 times more likely to be the father than a random person.
Contact an Experienced Illinois Paternity Lawyer Today
Establishing paternity can have important legal repercussions for both parents and their child, so if you live in Palatine, Rolling Meadows, Inverness, Arlington Heights, Schaumburg, or Barrington and have questions or concerns about your own rights to child support or visitation, please contact The Law Offices of Jenet G. Pequeno, LLC today.