Establishing Paternity in Illinois
Under Illinois paternity laws, if parents are married before the birth, the husband is legally presumed to be the biological father of the child. If the parents are not married before the birth, paternity rights can be established through a Voluntary Acknowledgement of Paternity, an Administrative Paternity Order, or a Judicial Paternity Order which sometimes requires DNA testing.
What Is Paternity?
Paternity means being the legal father of a child. Once it’s proven, paternity gives the father the right to have custody of the child and allows the mother to get child support if necessary. Without established paternity, the mother has sole custody of the child.
How Is Paternity Established?
How parents choose to establish paternity depends on the relationship the parents have with each other. If parents are married or agree on who the father is, the process goes much quicker. Either way, parents establish paternity through one of these four options:
- Presumed Paternity Through Marriage
- Voluntary Acknowledgment of Paternity
- Administrative Paternity Order
- Judicial Paternity Order
1. Presumed Paternity Through Marriage
In Illinois, if the father is in a marriage or civil union with the mother, he is legally assumed to be the father. This assumption is valid as long as both parties agree.
The scope of this assumption includes time before and after the marriage or civil union. So, a child born within 300 days after a divorce or separation is assumed to be the child of the ex. Similarly, if parties get married after the child is born, the new spouse is legally assumed to be the father. In this case, he just needs to be on the birth certificate or give his written consent.[1]
2. Voluntary Acknowledgement of Paternity (VAP)
The Voluntary Acknowledgement of Paternity (VAP) is the best way for unmarried parents to establish paternity. But parents should only sign this if they both are certain who the father is. Parents usually complete and sign a voluntary acknowledgment at the hospital when the child is born. Once completed, parents file it with the Department of Health and Family Services (HFS).
If parents want to, they can take the VAP home and fill it out later. For the VAP to be valid, another adult must witness the signatures. Then the parents mail the document to the HFS-Administrative Coordination Unit. If it’s filed with and accepted by HFS, the VAP can establish paternity any time before the child turns 20 years old.[2]
Reversing the VAP After Signing
If you signed the VAP and no longer believe you are the father, you have 60 days from the day you signed the VAP to contest it. Either party can contest the VAP by filing a Rescission of Voluntary Acknowledgement of Paternity.
If 60 days have passed since signing the VAP, you can fight it by filing a Motion to Vacate the VAP with your local court. It is hard to overturn paternity that you consented to in Illinois, so the sooner you file the better. The Illinois court can even deny a motion for genetic testing if it is in the child’s best interest.
If you want to challenge the VAP based on claims of fraud, duress, or material mistake, you have two years from the VAP’s effective date to do so.[3]
3. Administrative Paternity Order
Child Support Services can enter an Administrative Paternity Order that establishes paternity. Child Support Services works to ensure that biological parents financially support their children. To do this, they must prove who the father is because biological parents have a legal responsibility to support their children.
An Administrative Paternity Order usually occurs when a mother wants the other party to pay child support. Child Support Services helps mothers free of charge. They can even order genetic testing of the potential father if necessary.
4. Judicial Paternity Order
Anytime paternity is in dispute, a paternity case can be filed with the court to prove who the father is. The process begins with one party filing a petition, then the court schedules a hearing. These cases have a lot of moving pieces, and court officials make decisions based on arguments, evidence, laws, statutes, and case law. If you want help from an Illinois family law attorney who only works in family law, call Sterling Hughes.
Often, genetic testing determines paternity. Once the courts know who the father is, parents or the court outlines parental responsibilities (custody), parenting time (visitation), and child support.
What Is a Paternity Test?
A paternity test compares the child, mother, and father’s DNA gotten from a cheek swab. Paternity tests legally establish paternity if they show the alleged father is the biological father with 99.9% certainty.
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Considerations
Why Is Establishing Paternity Important?
Establishing paternity benefits the mother, father, and child. These benefits include:
- Ensuring the father’s rights to custody and visitation with the child.
- Beginning a relationship between father and child for co-parenting.
- Giving the child access to family medical information.
- Securing financial support and insurance eligibility from two parents.
- Providing the child with the right to inherit from both parents.
- Allowing the child's eligibility for death benefits such as Social Security, military/VA benefits, and pensions.
What Is the Statute of Limitations for Illinois Paternity Cases?
If a child has two legally established parents, an outside party cannot try to sue for paternity if two years have passed since the paternity of the original parents was established. If the child or one of the established parents wants to challenge paternity, they have two years from the time they knew or should have known the relevant information to bring the case to court.[4]
If a Man Signs the VAP, Is He Required to Pay Child Support?
No, paternity does not automatically mean the father pays child support. Child support is based on how much each parent makes and the number of overnights they have with the child. Use our child support calculator to calculate child support.
Are you ready to move forward? Call (312) 757-8082 to schedule a strategy session with one of our attorneys.
Frequently Asked Questions
What is the easiest way to establish paternity?
The easiest way unmarried parents establish paternity is by completing the Voluntary Acknowledgement Paternity (VAP). The easiest time to complete the VAP is soon after the child’s birth with the hospital’s help.
For parents who are married, in a civil union, or in an equally legal relationship, the courts assume paternity. These parents don’t need to do anything special to establish paternity.
How does a father establish paternity in Illinois?
To establish paternity, the father can– 1.) be in a legal relationship with the mother, 2.) sign the VAP, or 3.) establish paternity through an Administrative or Judicial Paternity Order. After establishing paternity, you can get a custody order and a placement schedule.
Does establishing paternity give a father rights?
Under Illinois’s custody laws, establishing paternity does give the father rights to the child. Those rights vary depending on what the parents decide or what the court rules. These rights refer to the father’s decision-making authority and parenting time with the child.
How long does a father have to establish paternity in Illinois?
In Illinois, the latest possible time that the statute of limitations for paternity can end is when the child turns 20, so you cannot establish paternity after that time. But the sooner paternity is established, the sooner a parent/child relationship can start. Establishing paternity also allows for child support when necessary.
Does signing a birth certificate establish paternity in Illinois?
No, signing the birth certificate does not establish paternity in Illinois. The signatures on a birth certificate without a VAP hold little to no legal value in Illinois family court.
Does a paternity test give a father rights?
A paternity test that comes back proving he is the father ensures he has rights to the child. However, those rights depend on the specifics of the situation. Different situations give the father more or less child custody and visitation.
What rights do unmarried fathers have in Illinois?
As long as paternity is established, unmarried parents have equal rights to the child whether they are a mother or a father. If it is in the child’s best interest to have equal or more time with the father, that can happen too.
Can I demand a paternity test?
Either party can ask for a paternity test to prove whether or not the alleged father is the biological father. It is better to get the test done right away, so there are fewer issues later on.
How much does a paternity test cost in Illinois?
Each person may have to pay for their own paternity test or the cost may be shared between both parties. If the court fees were waived, parties may be able to have the paternity fees waived as well.
References: 1. 750 ILCS § 46/204 (a). Parent Child Relationship. | 2. Paternity Information You Should Know. Illinois Department of Healthcare and Family Services. (n.d.). | 3. 750 ILCS § 46/307,309 (a)(3). Voluntary Acknowledgement. | 4. 750 ILCS § 46/607-10 (a)(3). Proceeding to Adjudicate Parentage.