Unmarried fathers have paternity rights. For the most part, there is no longer a social stigma associated with unmarried parents. But the law is a different story. By default, a biological father who is not married to the mother must “prove” they are a child’s legal father. Establishing such legal fatherhood status – i.e., paternity – is often a crucial first step in asserting basic parental rights.
Let’s start with a simple example. Michael and Jane are married. Jane has a baby. Under Illinois law, Michael is presumed to be the legal father of that baby, even if someone else might actually have been the biological father. In this case, marriage itself is considered sufficient proof of legal paternity. The basic rule in Illinois is that if the mother of a child was in a legally recognized marriage or civil union when the child was born–or within the 300 days preceding birth–the mother’s spouse or civil partner enjoys the legal presumption of paternity.
Note that this is only a presumption. It is possible for someone else to establish paternity even if the mother was married or in a civil union. But this requires the putative father to follow a certain legal process.
The simplest way for an unmarried father to establish paternity is to file a form called a Voluntary Acknowledgment of Paternity (VAP). This is a legal document that must be signed by both parents–the mother and the putative father–and witnessed. If the mother is married to someone other than the biological father, both she and her spouse must also sign a separate Denial of Parentage form to disprove the presumption that the spouse is the child’s legal parent.
If the VAP form (and Denial, when applicable) are properly signed and filed, that is all that is necessary to establish paternity. No separate court order or genetic test is necessary. Indeed, by signing the VAP, the putative father waives his right to a DNA test. Once the VAP is filed, the biological father’s name is added to the child’s birth certificate.
Now, it is possible to rescind a VAP. Either the mother or the biological father may sign and file a Rescission of VAP within 40 days from the effective date of the original form or the date of any legal proceeding related to the child’s parentage, whichever is earlier.
If a VAP cannot be filed for any reason, then the paternity of an unmarried father can still be established either through an administrative order issued by the Illinois Department of Healthcare and Family Services (HFS) or a court order issued by a circuit court judge.
When HFS gets involved, they typically try to establish paternity without resorting to formal legal measures first. HFS will usually ask the putative father to submit to a DNA test. If the putative father is looking to prove paternity, it is obviously in his interest to agree to such testing. If the putative father refuses to take the test or otherwise fails to cooperate with HFS, the agency may issue an administrative order declaring him the legal father by default.
If it becomes necessary to go to court, HFS can ask the State’s Attorney’s Office to file a formal lawsuit in circuit court to establish paternity. The court can order the putative father to submit to DNA testing if he previously refused. Note that Illinois courts only have jurisdiction to hear paternity cases if the mother lives in a different state or the child in question has lived in Illinois for less than 6 months. If either of these exceptions applies, the putative father may need to go to another state to establish paternity, which may have rules that differ from those of Illinois.
Also, keep in mind that the putative father may also file a lawsuit if they wish to establish paternity. They do not need to wait for the HFS or the mother to take legal action. Indeed, it is even possible to file a paternity lawsuit before the child is born, i.e., while the mother is still pregnant. The court will typically not issue a final order of paternity before the child’s birth, but the judge can allow for blood tests and depositions to provide evidence in support of the putative father’s case.
Now, you may be wondering, “Can I file a lawsuit to disprove my paternity of a child?” The short answer is no. If you are not married to the mother and are thus not the presumed legal father, you do not have legal standing to ask a court to declare you are not a child’s father. Only the mother or the presumed father can take such action.
Finally, it is worth noting that paternity does not have to be established near the time of the child’s birth. Under Illinois law, a court may hear a paternity lawsuit at any time until the child reaches the age of 20.
Legally speaking, an unmarried father has the same legal rights as a parent who is married to the mother. Similarly, the law is officially gender-blind when it comes to parental rights. The mother does not have any greater legal rights with respect to the child simply because she is female.
At the same time, merely establishing paternity does not automatically grant you custody or visitation rights to your child. The court must separately consider such issues. And in establishing custody and visitation, the law places the “best interests of the child” as paramount to the wishes of either parent.
That said, a judge will certainly consider a father’s wishes regarding custody or visitation arrangements in determining the child’s best interests. But the Court must look at a wide range of additional factors, including what the child wants (if they are old enough to say so), how well the child is doing in their current home and school environment, and the living situation of each parent. Another important consideration is whether or not the parents are able to cooperate when it comes to their child.
For example, if the mother is constantly bad-mouthing the father to the child, or vice versa, the court can take that into account. The court may also look at whether either parent is currently in a relationship with someone else and how that may affect the child’s welfare.
In short, an Illinois judge may examine just about every aspect of a father’s life before settling upon appropriate custody and visitation arrangements.
The other big question that comes up when an unmarried father wants to establish paternity is, “Will I need to pay child support?” The answer is yes, if the child continues to live primarily with the mother, an Illinois court can and will order the father to pay child support.
More to the point, the court can order retroactive payments of child support. This is where paternity cases involving unmarried parents differ from divorce. In a divorce case, it is rare for a judge to order retroactive child support since it is assumed the father supported his children during the marriage. But when the parents were never married, a judge can order the father to make retroactive child support payments to the mother relative to the child’s support.
Such retroactive awards are not automatic, however, and require a judge to consider several factors, which include but are not limited to:
Additionally, in cases where the father not only seeks a paternity determination but also asks for and receives primary custody of the child, the father may seek child support payments from the mother. Again, Illinois law is not biased in favor of any parent or gender o this issue. The non-custodial parent can always be required to pay child support.
As with custody determinations, the actual amount of child support required by the Court depends on a number of factors. Illinois actually maintains a comprehensive set of child support guidelines that judges must follow. The guidelines primarily look at the number of children requiring support and the supporting parent’s net income in calculating the actual amount of support.
If you are an unmarried father who is unsure about the best way to assert your legal rights, it is best to obtain expert legal advice. The Aurora fathers’ rights attorneys at Keller Legal Services can represent you in paternity, child custody, and child support matters. Contact us today at 630-505-1515 to schedule a free initial consultation.