The Rights and Duties of Mother and Father
More than one-third of the children born in the United States are born out of wedlock. And in keeping with more and more children being born to unmarried parents, the law regarding parentage (paternity) has recently changed. The Illinois parentage law was comprehensively changed in 2016, based on the Illinois Parentage Act of 2015.
What significance is there in placing the father’s name on the birth certificate?
If it is without the man’s consent, it is of no significance. If it is with his consent it is evidence of paternity, but does not establish paternity. On the other hand, the Voluntary Acknowledgment of Parentage that often accompanies this birth certificate does have critical legal implications. Keep in mind that the law states that the name of the father should not be entered without his consent.
Where the parents are in agreement is there a simplified procedure for establishing paternity?
Yes. This can be accomplished by the signing and witnessing of a voluntary acknowledgment of parentage. The voluntary acknowledgment must be signed by each parent and the signatures of each parent must be witnessed. The statement should also contain the social security numbers of the parents.
This voluntary acknowledgment of paternity may be used as a basis for seeking a child support order without any further legal proceedings to establish paternity. This acknowledgment does not establish an obligation for child support. Child support can only be established by a court order or administrative order by the Illinois HFS.
Did the 2016 law change the required forms for a VAP?
Yes. Due to the new Illinois Parentage Act of 2015, 750 ILCS 46/, the following forms were revised:
- HFS 3416B (Voluntary Acknowledgment of Paternity);
- HFS 3416D (Denial of Parentage); and
- HFS 3416E, (Rescission of Voluntary Acknowledgment of Paternity and/or Denial of Parentage).
But before signing any VAP, one should consult with a lawyer to understand the consequences of doing so.
What is the Putative Father Registry?
To keep from potentially forfeiting his parental rights, a father should register his claim for paternity within 30 days after the child’s birth. See: https://www.putativefather.org/index.aspx
May a father bring court proceedings for “custody” of the child?
Of course so long as you understand that the word “custody” is no longer part of the law. But a father can seek to be named the parent with the majority of the parenting time. There is no gender bias in favor of the mother. The allocation of parenting time and parental responsibilities are determined on what is in the best interest of the child. The same underlying law generally applies regarding what had been referred to as custody — the provisions of the Illinois Marriage and Dissolution of Marriage Act.
Is a father of a child born out of wedlock entitled to “visitation”?
Yes. He may obtain a court order allocating to him parenting time.
How is paternity proved?
The usual method is by DNA testing. These test results can pinpoint if a man is a child’s father with better than a 99 percent likelihood. Paternity testing is now quick and relatively inexpensive. But it is not generally necessary depending on the timing if a voluntary acknowledgment of parentage was properly completed, etc.
How much child support will the court order?
Illinois now follows an income shares model. Illinois law considers the income of father and the mother and factors such as whether the non-residential parent has 148 overnights. The courts generally, but not always, follow the child support guidelines based on this income shares model. But keep in mind that before 2017, Illinois law was a simple percentage of the payor’s net income. So, under earlier law, if the father had “visitation” he would pay for one child, 20% of his net income. The term “net income” is defined by the statute. In addition, for younger children there is often an order allocating the division of daycare expenses, extra-curricular expenses, non-covered health care expenses. The parent not allocated primary parenting time is also usually required to maintain health insurance for the child.
I have heard about removal–what does it mean?”
“Removal,” as used in Illinois family law prior to 2016, had meant moving out-of-state with a child. The current term is relocation. In 2016 the law changed to provide for relocation of children and the law became in essence more complex because there was one set of boundaries for the so called “collar counties” and another for counties outside the collar counties. And there is the potential impact of many agreements that may have outlined standards under the previous law. It is critical to consult with a lawyer regarding any issue of relocating a significant distance from the other parent, such as more than 25 miles within the collar counties in order to understand your potential rights and obligations. See the Gitlin Law Firm’s Q&A regarding relocation.
I have primary residential custody of my non-marital child under an older Joint Parenting Agreement. Does Illinois law prevent me from moving out-of-state with the child without permission of the court and the non-custodial parent if I want to move more than 25 miles from him?
Yes, if the court has entered an order for custody and visitation of the non-marital child (now known as a judgment allocating parenting responsibilities as generally outlined in a parenting plan) and if the move is more than a certain number of miles from the child’s then current primary residence to a new residence out of state. This may often happen in counties or other border counties throughout Illinois (such as McHenry County and Lake County) where one may be able to move to Wisconsin.