Legal paternity
What is "legal paternity"?*
Paternity is the relationship between a father and his child. Legal paternity is paternity established by law. State law recognizes only the legal father as having certain rights and responsibilities. In Illinois, a man is a child's legal father only if one of the following is true:
- He was married to the child's mother when the child was born or when the child was conceived (or both)
- He married the mother after the child's birth and he is listed with his permission (as of August 9, 1996, his written permission is needed) on the child's birth certificate as the father
- There is a court order or Department of Public Aid administrative order of paternity
- He and the mother have signed a voluntary "acknowledgement of parentage" or "acknowledgement of paternity" form
If legal paternity has not been established, the man has no right to ask a court for custody or visitation with a child, and the child's mother cannot try to have a court order the father to pay child support.
Am I the legal father if I am listed on the child's birth certificate?
For children born before August 1996, if a person is listed as the child's father on the birth certificate, it does not establish legal paternity. Also, it is not enough that a child have his father's last name or that the father has admitted that the child is his. Only marriage to the child's mother, a court order or Public Aid administrative order of paternity or a "voluntary acknowledgement of parentage/paternity" makes a man the child's legal father.
For children born after August 9, 1996, if a person is listed as the child's father on the birth certificate, it does establish legal paternity. This is because in August 1996, the Illinois law was changed so that a man may be listed as the father on the child's birth certificate only if one of the following is true:
- He was married to the mother at the time of birth or conception
- He and the mother have signed a "voluntary acknowledgement of parentage"
If paternity is established either by a court or by a Public Aid administrative order, a new birth certificate can be issued with the father's name on it.
How can you establish paternity?
Under the present Illinois law, you can establish paternity in two ways:
- The parents can sign the voluntary "acknowledgement of parentage / paternity" form. The form is the same thing as having a court establish paternity
- You can either file a lawsuit in court to establish paternity or establish paternity by a Public Aid administrative hearing
Either the mother or the father can file a court case against the other. The case also can be filed on behalf of the child, by the child when he or she is grown, or by a state agency such as Public Aid or DCFS if that agency is supporting the child. A man alleged to be the father may request a court-appointed lawyer if he cannot afford to hire an attorney. If the person sued in the paternity case denies that he is the father, it could result in a trial. Blood tests are very good at helping prove whether or not someone is the father. As part of the paternity case, the judge can order who the child will live with, when the parent not living with the child can visit the child, and child support.
There are time limits on when a paternity case can be filed in court, but the law is not clear on this. In many cases, the court case can be filed until the child's 18th birthday and in certain cases even until he or she is 20. A father may not be able to bring a paternity case if he has not visited, supported or communicated with the child for three (3) years. It is usually best to file a paternity case as soon as possible, while the child is young and the evidence is fresh. It also is very important for the father to file with the Putative Father Registry immediately upon the child's birth.
What is the Public Aid administrative hearing?
Under a new law, paternity can be established in a hearing before a Public Aid hearing officer instead of a judge. In most cases, the mother must name who the father is in order to receive Public Aid. (Exceptions may be allowed, for example, where the father is a serious danger to the mother.) Lawyers working for the state then get a paternity and child support order. The Department of Public Aid plans to start using the administrative procedure for these cases rather than going to court. The administrative order has the same effect as a court order and may include an order for payment of child support.
Is there a way to get low cost genetic testing to determine if I am the parent of a child?
The Illinois Department of Public Aid runs a Program called the Child Support Enforcement Program to help parents collect child support payments, establish paternity, and locate a non–custodial parent (the parent who does not live with the child). This program is available to everyone, not just people who receive public aid. You can get the application online or by calling the Child Support Customer Service Call Center at 1-800-447-4278 (TTY: 1-800-526-5812) and asking for an application. Once you fill out your application, mail it to your regional Child Support Enforcement Program location.
Once you are in the program, you and the other parent can sign a voluntary Agreement to be Bound by the Results of Genetic Testing. Public Aid will provide the testing, and if it turns out that you are the father, they will enter an Administrative Paternity Order and notify the Department of Public Health, Vital Records unit to add the your name to the birth certificate. This means that you will have established legal paternity.
For more information about applying for child support enforcement services or to establish paternity call, the Child Support Customer Service Call Center at 1-800-447-4278. People who are using a teletypewriter (TTY) may call 1-800-526-5812.
What if I'm married to someone that isn't the father?
For a child born or conceived during a marriage, Illinois law assumes that the mother's husband is the father until a court order is entered saying that he is not the father. This kind of lawsuit generally must be filed within two years of the child's birth. No court or administrative order of paternity against the real father can be made until there is an order that the husband is not the father.
*www.illinoisprobono.org
**Nothing contained herein is legal advice, nor should it be relied upon as such. Legal advice is the application of general legal principles to the specific facts of a given situation – if you need legal advice, call one of our attorneys today.
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