Suppose you are living with your romantic partner and your shared child for several years. You know for certain that your partner is your child’s biological father and you have all been living together in a close-knit family for some time. Eventually, the relationship goes sour and you and your partner choose to break up and live apart. You retain custody of your child. When you ask your former partner for support, he refuses to pay, claiming he is not legally the child’s biological father. What sort of legal recourse do you have under Illinois law if you want to get child support?
Illinois law recognizes that each child has a right to emotional and financial support from both parents, regardless of whether the parents decide to marry. However, under Illinois law, paternity must be established before a family law court can order a former romantic partner to pay child support. In Illinois, paternity is established in three ways. It can be established through consent, presumption, or judicial determination.
In the scenario above, the mother should first see whether she and her former partner gave legal consent or acknowledgement that he was the biological father. Assuming the former partner was present at the hospital around the time of the child’s birth, the partner may have already consented to being the child’s father.
A person may give legally-binding parental consent by signing a form stating he is the child’s father around the time the child was born. Parties are typically asked to fill out paperwork about the child’s parentage in the hospital shortly after the child’s birth. This paperwork typically includes fill-in-the-blank language and a signature line stating who the child’s parents are, along with a disclaimer stating that by signing the form, the father (and mother) agrees to parental rights and obligations such as child support, and waives the ability to contest paternity of the child in future legal action. Once both parents sign the form, the partner consents to being the biological father and father’s name may be put on the child’s birth certificate. Thereafter, the father is obligated to pay child support if he is no longer living with the child.
In addition, if the mother and her partner signed a Voluntary Acknowledgment of Paternity form after the child’s birth certificate was made, the partner will likewise be presumed to be the child’s biological father.
Under Illinois law, when a child is born to married parents, the husband is presumed to be the father absent evidence to the contrary. This means of establishing paternity is inapplicable in the above case.
If the partner never consented to paternity in writing, the mother may have to petition to her local family law Court and establish paternity through a legal proceeding. In this proceeding, the court, or any party, may demand a DNA test. The alleged father is required to take a DNA test, and if he does not do so, he may be declared the legal father by default. The court decides what party is responsible for paying for a DNA test. Somewhat commonly, the court may itself agree to pay for the paternity test. If the court determines the alleged father is the child’s biological father, it will establish a legally-binding judicial order establishing paternity. After paternity is established by the family law court, the father will be legally obligated to pay child support.
The above summary provides a cursory glance into Illinois law and paternity testing. For more information on how this process works, and how it applies to different factual scenarios, contact our experienced team of Illinois family law attorneys at Kathryn L. Harry & Associates, P.C. You can reach us by phone at (877) 889-4515 or write to us through our website.