Fathers of children born out of wedlock face many hurdles as to their rights under Illinois law.
One common misconception is that executing a Voluntary Acknowledgement of Paternity (VAP) when a child is born grants custodial or visitation rights to a father. In actuality in Illinois, a VAP provides no protection to the father as to custody or visitation and serves only as a basis for child support to be initiated.
What many fathers fail to recognize is that under Illinois law, no custodial or visitation rights are established for a father to a child born out of wedlock until an order is entered with the court declaring that a biological relationship exists. It’s at this point either parent can (and should) seek further orders as to the legal custody, visitation, and support for the child.
Whether a paternity case is initiated by the mother or the father of a child born out of wedlock, the court will usually facilitate a DNA test at a reduced cost to the parties to confirm paternity of the child.
It is generally advisable to obtain a DNA test before entering into an order establishing paternity, child support, etc., as it is very rare that an Illinois court will overturn a prior order consenting to paternity even in cases where the alleged father has later discovered he may not be the biological father.
Paternity cases in Illinois are subject to the majority of the laws that govern custody matters in divorce cases, such that legal custody, visitation, and child support follow the same guidelines and procedures as applicable in divorces.
Paternity cases are also subject to the same laws governing modification and enforcement of custody and support orders in divorce cases.
Additionally, if the parties in a paternity case are unable to resolve the custody and visitation issues by agreement early in the case, the court will order the parties to attend mediation to make a good faith effort to reach an agreement as to those issues, pursuant to court rules.
Important child support considerations also exist for fathers in paternity cases. If a father is seeking to establish child support of a child born out of wedlock, he must first establish parentage with the court.
Alternatively, if the mother is seeking child support from the father, parentage need only be established by a VAP or the father’s signature on the child’s birth certificate.
Another important child support consideration is that when the child involved in a paternity action is less than two years old, the court can order the father to pay retroactive child support, including child support back to the time the child was born plus the birthing and hospital expenses.
While there may be a two-year limitation on seeking reimbursement for birthing expenses, a paternity action (whether raised by the mother or the father) may be brought anytime until two years after the child attains the age of majority, meaning that a child could be 20 years old and a legitimate paternity action could still be raised with the court for paternity or support.
A father facing a potential paternity situation should seek counsel from an Illinois family law attorney familiar with child custody matters as soon as he knows the issue.
Failure to take the appropriate action with the court can lead to unintended consequences or a default judgment being entered against a father who elects not to participate in a court action regarding paternity.
A father to a child born out of wedlock should also take steps to register with the Putative Fathers Registry in Illinois to ensure proper notice is given to him should the mother choose to pursue adoption of the child or seek to address other legal matters regarding the child.