|Establishing Legal Paternity||
Last updated: June 2009
Paternity is the relationship between a father and his child. Once legal paternity is established the father takes on rights and responsibilities for the child, including visitation or custody and child support.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 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 "Voluntary Acknowledgement of Paternity" formOnly the natural mother, someone who believes he is the father of the child, or the child can petition to establish paternity.Click on words that appear like 'this' to learn what these words mean.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. Once legal paternity is established the father takes on rights and responsibilities for the child, including visitation or custody and child support.How do I know if legal paternity has been established? 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 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 "Voluntary Acknowledgement of Paternity" formWho can petition to establish paternity? Either the natural mother, someone who believes he is the father of a child or the child can establish paternity.Who should establish paternity? A father who is not married to the mother of his child should establish paternity if he wants his parental rights and is willing to accept his parental responsibilities.If I am established as the father, what are my rights? Unless the other parent can prove you are a danger to the child, you have the right to a normal father/child relationship. You will have the right to visitation with your child if you are not given custody.If I am established as the father, what are my obligations? Generally, until the child turns 18, you must give financial support. You must support your children even if you are not allowed to see them. Your financial support for a child may include child support payments, medical insurance, life insurance and college expenses. Also, if you are required to pay support, then you must notify the other parent and the Clerk of the Court of any change in employment. This must be done within 7 days of your new employment and must be done in writing. If you do not pay your child support when it is due, you will owe interest on the amount owed after 30 days from the date that it is due. What if I don't establish paternity? If you don't establish paternity, then you will have no legal right to be involved in your child's life. Also, if you do not register with the Putative Father Registry within 30 days of your child's birth and initiate paternity proceedings within 30 days of registering, your child can be adopted without your knowledge or consent and you will permanently lose all rights to the child. You can register before the birth of the child, but no later than 30 days after the birth of the child.If you wait more than two years after the child turns 18 or is emancipated, you may never be able to get rights to your child. Your child will also not be able to inherit from you without a will or get any benefits such as Social Security through you.How can I establish paternity if the mother of the child agrees that I am the father? If you are sure that you are the father, and the mother agrees, then you can establish paternity without going to court. To do this, you both must sign a Voluntary Acknowledgment of Paternity. Go the the "Forms/Letters" section to fill out this form. You may also get this form at your local county clerk's office, the hospital where the child was born or from the Illinois Department of Public Health. But, if the mother of your child is married, or was married at the time the child was born, then you must get the husband or ex-husband to sign a Voluntary Denial of Paternity form to say he is not the father. You must do this even if the mother agrees that you are the father. This form is also available from the Illinois Department of Public Health.How can I establish paternity if the mother of the child does not want me to be named the legal father? If the mother does not want you to be named the legal father, then you must file a petition in court to establish paternity and custody. 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. To file a petition, see the "Instuctions" section of this guide for the steps you should follow. For the forms you will need, see "Forms for a Father to Establish Custody If There is No Proof of Paternity" in the "Forms/Letters" section of this guide.What is the Public Aid administrative hearing? 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 when, for example, 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.Are there time limits on paternity cases? 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 at least 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.When should I talk to a lawyer? You should talk to a lawyer if:You want to get custody of your child, but the mother does not agree; You think that the mother of the child will say you are a danger to her or the child; You have waited more than two years after the child has turned 18 or is emancipated to establish paternity; The child is not living with you or the mother; You do not know where the mother or the child is. You may ask for a court-appointed lawyer if you cannot afford to hire a lawyer. Click on the "Find Legal Help" tab to find free legal help.How much will it cost? There is a fee to file the Petition to Establish Parentage and for Custody.If you can prove that your income is too low to afford this, you may fill out an Application and Order to Sue or Defend as an Indigent Person which asks the court to let you file for free. For more information, "Filing Court Papers for Free" in the "Related Articles" section of this guide.What happens if the mother and I can't agree on paternity in court? If the mother says you are not the father, or you ask for a blood test in your complaint, then the judge will order blood tests or DNA tests for you, the mother and the child. The test results will prove whether you are the father. The test results will be mailed to you before the next court date.Is there a way to get low cost genetic testing to find out if I am the parent of a child? The Illinois Department of Healthcare and Family Services runs a program called the Division of Child Support Services to help parents collect child support payments, establish paternity and locate a non-custodial parent. You can get the Child Support 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 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 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.What if the test results show that I am not the father? If that result is satisfactory to you, make sure you have an order entered that states you are not the father. If that result is not satisfactory, you may ask for a second test. You will most likely be ordered to pay for it. If the judge decides you are not the father after testing, and you have had a relationship with the child that you want to maintain, you may still do so. You will need to talk to with a lawyer.What if the test results show that I am the father? On the first court date after you receive the results, make sure that a court order is entered finding that you are the legal father of the child. What if, even after the test results show that I am the father, the child's mother and I cannot agree on other issues? If you have not agreed on the other issues, your case will be "continued" (set for another court date). You should ask the judge for an order that finds that you are the legal father of the child and sets the case for another court date.If you and the mother cannot agree on custody or a visitation schedule, then the judge may send you to mediation. To learn more about mediation, see the information under "Related Articles." If you and the mother still can't agree on custody or a visitation schedule after mediation, the judge will decide. The judge will also set child support based on the net income of the non-custodial parent. If you want custody and the mother does not agree, you should talk to a lawyer. A contested custody case is hard to handle without a lawyer. Search the "Find Legal Help" section for more information. How do I get my name on (or off) the birth record? To change a birth record, you can contact:Illinois Department of Public HealthDivision of Vital Records605 W. JeffersonSpringfield, IL 62702-5097Is my child's last name automatically changed when I am added to the birth record as the father? No. The child's last name is not automatically changed. If the Voluntary Acknowledgment of Paternity form is used, a separate request is required. If the legitimation forms are used, there is a space on the form to change the name. If the parents obtain an administrative or judicial paternity order, the parents will need a separate written request signed by both parents asking that the child's name be changed.If the parents obtain a court order that indicates a name change, then the parents do not need to also sign a written request for the name change. The parents' written request or court order must show how the child's name is to appear on the new birth record.Prepare your forms Fill out the Petition to Establish Parentage & for Custody. This petition is part of "Forms for a Father to Establish Custody If There is No Proof of Paternity" and "Forms for a Mother to Establish Custody If There is No Proof of Paternity." You are the Petitioner; the other parent is the Respondent. Make 2 copies. Get a 30 Day Summons from the Circuit Clerk. Fill in your name as the Petitioner, and theother parent's name as the Respondent. At the bottom, fill in your name and address.File your case in court File Petition and 30 Day Summons with the Circuit Clerk. Whenever you file your petition with the Circuit Clerk, you will be charged a fee. If you cannot pay this fee, see "Filing Court Papers for Free" in the "Related Articles" section of this guide for more information.Take 1 copy of the Petition to Establish Parentage & for Custody and the Summons to the Sheriff to have them serve the Respondent with the papers. Keep a copy of the Petition for your records.Wait for the other parent to be served with the petition Wait 30 days after the Summons went to the Sheriff. Then, you can call the Circuit Clerk to find out when the Petition and Summons were served on the Respondent (other parent).Get a hearing date After the Respondent (other parent) is served, contact the Circuit Clerk to schedule a court date for ahearing on your Petition.Using the information the Clerk gives you about the court date, fill out Notice of Hearing.Make 2 copies. File the original with Clerk. Mail 1 copy to the Respondent, by regular mail. Keep 1 copy for your records. Make sure that you mail the notice of hearing and the petition at least 21 days before the date of the hearing.After mailing Notice of Hearing, fill out the Proof of Mailing – Notice of Hearing. Make 1 copy. File the original with the Clerk. Keep the copyGo to your hearing Before the hearing, prepare the Order for Parentage & Custody by filling in the parents' names at the top of the Order, and by filling in the children’s names at Part 3(a). The Judge will complete the rest of the Order at the hearing. Make 2 copies of the Order.Go to the hearing. If all goes well, you will testify briefly and the Judge will sign the Order. Make sure you get 2 copies of the completed and signed Order – 1 for your records and 1 tosend to the mother.If the mother denies that you’re the child’s father, the Judge may order DNA testing. You may have to pay for that testing, or the cost may be shared. The DNA results will determine whether you are the child’s father.If the mother admits that you’re the child’s father, or that is proven by DNA testing, the mother may then oppose your request for custody. You then have a contested custody case. A contested custody trial can get complicated and you may want to get an attorney.Notify the other parent of the order, if they do not come to the hearing If the other parent does not come to court, and the Judge signs an Order of Parentage & Custody, mail the other parent a copy of the Order, by regular mail.Fill out and file the Proof of Mailing – Order of Parentage & Custody with the Clerk.
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