The Rights and Duties of Mother and Father
Nearly 40 percent of children born in Illinois are born out of wedlock. And in keeping with more-and-more children being born to unmarried parents, Illinois law regarding parentage (paternity) has recently changed. Illinois rewrite our parentage law in 2016 based on the Illinois Parentage Act of 2015.
What significance is there in placing the father’s name on the birth certificate?
It depends on whether the couple properly executes a VAP. A Voluntary Acknowledgment of Parentage that accompanies this birth certificate has critical legal implications. In Illinois for a father’s name to be on the birth certificate, the father and mother must both sign the VAP.
Where the parents are in agreement is there a simplified procedure for establishing paternity?
Yes, if the parents have signed and had witnessed a voluntary acknowledgment of parentage.
This VAP 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 an 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, consult with a lawyer to understand the consequences of doing so. This is because within sixty days, one can only fairly readily rescind the VAP. But, one can only do so if it’s within this 60-day period. To rescind the VAP, one must properly follow all of the requirements for the court to recognize the document.
My son looks like me, so shouldn’t that be enough to set aside the VAP if later I learn that I’m not his biological father?
Probably not. There was an excellent article that discusses the phenomenon of a children seeming to look like their fathers.
It’s been six months since the VAP was executed, and I don’t believe I’m the father. What can I do?
It is now far more difficult to attack the VAP. The law now would require fraud, duress, or material mistake of fact. One still has to challenge the VAP by filing a verified petition within two years after the effective date of the VAP. Periods that may be excluded from the two-year bar are: 1) one is under legal disability or duress, or the ground for relief is fraudulent concealed.
What is the Putative Father Registry?
To keep from potentially forfeiting parental rights, a father has the right to 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. But understand that the word “custody” is no longer part of the law. That means that a father can seek to be named the parent with the majority of the parenting time. Illinois has no gender bias in favor of the mother. The allocation of parenting time and parental responsibilities are determined consistent with the child’s best interest. The same 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 outside of a marriage entitled to “parenting time” (visitation)?
Yes. He may obtain a court order allocating to him parenting time.
How is paternity proved if there was not a Voluntary Acknowledgment of Paternity?
The usual method is by DNA testing. There are home paternity tests. While they don’t legally establish paternity, parents sometimes rely on these kits before executing any voluntary acknowledgment of parentage. A legal test includes verifying participant IDs, witnessed DNA collection by an approved and impartial party, and a strict chain-of-custody process. DNA testing often pinpoint whether a man is a child’s father with a likelihood of 99.9% or higher probability. Judicially authorized paternity testing is quick and inexpensive. But it might not be necessary depending on the timing if a voluntary acknowledgment of parentage was properly completed and if one is beyond the time frame for challenging a VAP.
How much child support will the court order?
Illinois follows an income shares model. Illinois law considers the net income of father and the mother and factors including whether the non-residential parent has 146 overnights annually. The courts generally, but not always, follow the child support guidelines based on the Illinois income shares model.
In addition, for younger children there’s often an order allocating the division of daycare expenses, extra-curricular expenses, school expenses, and non-covered health care expenses. The parent not allocated primary parenting time is usually required to maintain or contribute to the cost of health insurance for the child.
I have heard about removal–what does it mean?”
Illinois uses the term relocation. We made this change in 2016. The law created one set of boundaries for the “collar counties” and another set for counties outside this area. The 25-mile rule applies to McHenry County, Lake County, Kane County, DuPage County, and Cook County. The 50-mile rule applies to other counties in Illinois. And parental agreements often affect the standards. So, one must 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–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?
It depends. The law does not focus on whether the residential parent moves out of state but how many miles one moves out of state. So, if you have at least 50% of the allocated parenting time and you move less than 25 miles, the law does not prohibit this move even though it could be out of state. This occurs in counties that border Illinois (such as McHenry County and Lake County). In these counties, the law allows one to move to Wisconsin as long as you provide enough notice to the other parent and your move is not contrary to the terms of your parenting agreement.
I know the VAP (Voluntary Acknowledgment of Parentage) was completed after my child was born. But I can’t find it. How do I get a copy of the form?
Click here to request a certified copy of the VAP. Have the completed form notarized and then mail to: Healthcare and Family Services, Division of Child Support Services, Administrative Coordination Unit, 110 West Lawrence Avenue, Springfield, IL 62704. To expedite this, send this request via express mail.
