Having to take a DNA test is not always the first thing men want to do or women want to ask to have done. But it is the only way to find out if a child is yours or not. However, legally establishing paternity in Illinois is a little different. And even more so, denying paternity.
Legally Establishing Paternity
750 ILCS 46/201 lists three (3) ways you can be presumed to be the father. “The parent-child relationship is established between a man and a child by:
(1) An unrebutted presumption of the man’s parentage of the child under Section 204 of the this Act.” 750 ILCS 46/204 states that “A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship…” This basically means, if you’re married when your wife has the child, you are presumed to be the father.
(2) An effective voluntary acknowledgment of paternity by the man under Article 3 of this Act; unless the acknowledgment has been rescinded or successfully challenged. If you weren’t married to the mother of the child, you may have signed a Voluntary Acknowledgment of Paternity. This is a special form that makes you the father if you are not married to the mother. Moreover, just because someone signs the form doesn’t mean they are the biological father. It simply means that individual voluntarily accepts responsibility for that child.
(3) An adjudication of the man’s parentage. “A valid voluntary acknowledgment filed with the Department of Healthcare and Family Services, as provided by law, is equivalent to an adjudication of the parentage of a child and confers upon the acknowledged father all of the rights and duties of a parent.” 750 ILCS 46/305(a). This is where the judge determines paternity. This usually takes place when a mother testifies that she only slept with the alleged father and no one else during the period nine months prior to the birth of the child. Where no one comes to intervene, the court enters judgment and adjudicates the alleged as the father.
750 ILCS 46/205 proscribes how to challenge paternity. “An action to declare the non-existence of the parent-child relationship may be brought by the child, the birth mother, or a person presumed to be a parent under Section 204 of this Act. Actions brought by the child, the birth mother, or a presumed parent shall be brought by verified complaint, which shall be designated a petition. After a presumption under Section 204 of this Act has been rebutted, parentage of the child by another man or woman may be established in the same action, if he or she has been made a party.”
“A person challenging a presumption under Section 204 of this Act may rebut the presumption with clear and convincing evidence.” 750 ILCS 46/206. This is where the DNA test comes into play. But not just any DNA test. Under strict guidelines, an expert must conduct the and prepare the report. In Cook county, the court appoints a DNA tester. This requires the parent and the child to take a DNA sample, on different days, to the tester and the tester reports the findings directly to the judge. The judge reveals the results and determines paternity during the court hearing.
It’s important to note that there is a time limit on when you can when you can ask for a DNA test. “An action to declare the non-existence of the parent-child relationship…shall be barred if brought more than 2 years after the petitioner obtains actual knowledge of relevant facts.” 750 ILCS 46/205(d).
More often than not, paternity is questioned during a divorce so, it important to note the time limit permitting a DNA test. Cook County courts do not like to break up families or tearing up a child-parent relationship. If a child is discovered not to be your child, and you have been loving and caring for the child, the court is less likely to disturb that relationship in the best interest of the child.
Establishing or denying paternity in Illinois is a big deal. Contact an experienced Chicago divorce lawyer today to learn more about how to best go about either option today.