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?
It depends on whether a VAP is properly executed. A Voluntary Acknowledgment of Parentage that should accompanies this birth certificate has critical legal implications. Keep in mind that based on Illinois law a father’s name should not be entered without his consent. Further Illinois law provides in the Vital Records Act:
Unless otherwise provided in this Act, if the mother was not married to the father of the child at either the time of conception or the time of birth, the name of the father shall be entered on the child’s birth certificate only if the mother and the person to be named as the father have signed a voluntary acknowledgment of paternity form…
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 VAP 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 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 only easily if it’s within this tight time frame. If one is rescinding the VAP, one has to properly follow all of the requirements for it to be of legal significance.
My son looks like me, so shouldn’t that be enough to set aside the the VAP if later I learn that I’m not his biological father?
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. These are terms of art. Illinois law provides:
(a) A voluntary acknowledgment and any related denial may be challenged only on the basis of fraud, duress, or material mistake of fact by filing a verified petition under this Section within 2 years after the effective date of the voluntary acknowledgment or denial, as provided in Section 304 of this Act. Time during which the person challenging the voluntary acknowledgment or denial is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.
What is the Putative Father Registry?
To keep from potentially forfeiting 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 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 but they do not legally establish paternity. Yet a number of parents 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 can pinpoint if a man is a child’s father often with a likelihood of 99.9% probability. Judicially authorized paternity testing is now quick and inexpensive. But it is may 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 voluntary acknowledgment of parentage.
How much child support will the court order?
Illinois 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 146 overnights annually. The courts generally, but not always, follow the child support guidelines based on the Illinois income shares model. But keep in mind that before 2017, Illinois law was a simple percentage of the payor’s net income. The term “net income” is defined by law.
In addition, for younger children there is 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 at least contribute to the cost) of health insurance for the child.
I have heard about removal–what does it mean?”
The current term is relocation. This change was made within Illinois law in 2016. The law in Illinois became in essence more complex because there is now one set of boundaries for the so-called “collar counties” and another for counties outside the collar counties. The collar counties that are subject to the 25-mile rule include McHenry County, Lake County, Kane County, DuPage County, and Cook County. 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–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.
I know the VAP (Voluntary Acknowledgment of Parentage) was completed after my child was born. But I cannot 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. Many times to expedite this, sent this request via express mail.
