With divorce getting the spotlight, an often-overlooked area of family law is the concept of parentage, specifically when the parents have never been married and thus did not divorce each other. However, with changing societal norms and more people choosing non-traditional lifestyles, parentage needs more focus, and the family law issues for non-married families need to be explored.
It is critical that parents know their rights when it comes to their children, and that they be well advised to pursue those rights if need be. The absence of marriage and divorce should never get in the way of someone exercising their rights as a parent, and Illinois law supports this proposition. In the state of Illinois, unmarried parents are given full legal recourse when it comes to the parenthood of their children.
In this article we will explore the concept of parentage, with a walkthrough of several different types of parentage cases in which the parents were never married. We will answer numerous questions you may have related to parentage from the perspective of both the mother and the father, if anything is unclear, or the question you have is not fully covered here, please reach out to our qualified Illinois family law attorneys who can help you through this process. Like any question in family law, the sooner you have effective representation, the more likely it is that you will reach a favorable outcome. Specifically, we will look at:
- What does parentage mean?
- What is the Illinois Department of Healthcare and Family Service, and what is its role with parentage?
- How do I establish child support in in Illinois if I was never married to the other parent?
- What is voluntary acknowledgment of parentage (VAP)?
- My partner is pregnant, how do I establish myself as the child’s legal father in Illinois?
- Which is better, a Voluntary Acknowledgment of Paternity or a Court adjudication finding paternity?
- Can I vacate paternity in Illinois?
- How long does a father have to establish paternity in Illinois?
- Can the mother stop me from seeing my child?
- What is an Illinois parenting plan?
- When can I claim my child on my tax form?
- If I break up with my child’s mother or father, do I get a share of our property?
- Can I collect maintenance or alimony from my former partner if I was financially dependent on them?
What does parentage mean?
In the simplest terms possible, parentage refers to being the legal parent of a child, generally used in the context of a father in a situation where there is a question surrounding paternity. Parentage is a key issue in legal actions seeking child support or parental responsibility. However, in Illinois the concept of parentage is much more than this simple definition captures. Section 102 of 750 ILCS 46, the Illinois statute governing parentage, provides a comprehensive breakdown:
“Illinois recognizes the right of every child to the physical, mental, emotional, and financial support of his or her parents. The parent-child relationship, including support obligations, extends equally to every child and to his or her parent or to each of his or her 2 parents, regardless of the legal relationship of the parents, and regardless of whether a parent is a minor.”
The provision constitutes Illinois’ declaration that an absence of marriage between a child’s parents should never disadvantage a child, in terms of their relationship with their parents, or their financial well-being. This also constitutes a declaration of the parent’s rights as well. Just as the child is entitled to a valuable relationship with their parent, so to are parents entitled to a meaningful relationship with their children, regardless of marital status or majority.
What is the Illinois Department of Healthcare and Family Service, and what is its role with parentage?
The Illinois Department of Healthcare and Family Service (HFS) is the Illinois state administration responsible for providing child support services to ensure that both parents are financially responsible for their child. This is accomplished specifically through its subdivision the Department of Child Support Services. When both parents accept paternity, the HFS makes available documents that allow parties to voluntarily setup paternity for a child. In a situation where the father contest paternity, the HFS is able to establish paternity through an administrative paternity order. This process is covered more fully below.
How do I establish child support in in Illinois if I was never married to the other parent?
When parents are married or in a civil union within 300 days before a child’s birth, the presumption in Illinois is that the married couple are the parents of the child. Outside of marriage, this presumption does not exist for couples who are cohabiting. However, note that in Illinois child support is absolutely not contingent on there ever being a marriage between the child’s parents.
Once paternity is established, the party who has primary parental responsibility for the child is entitled to financial assistance from the other party in the form of child support. In a situation where the parents of a child were never married, and the alleged father is denying paternity, the state of Illinois provides two options for the mother to pursue child support, these include:
Administrative Paternity Order
Under the Illinois administrative code, the Department of Healthcare and Family Services has the authority to enter an order establishing paternity for a child. The mother can bring an administrative proceeding under the auspices of the HFS against the man she believes to be the father of her child. The HFS is empowered to order genetic testing to be done, first seeking the alleged father to willfully submit himself to testing, and upon his refusal entering an order compelling him to do so. As part of this administrative proceeding, the HFS will interview both parties, gathering relevant information to establish paternity.
The HFS will also gather financial information, which will be used in the calculation of child support, should the alleged father be found by the department to have paternity of the child. This process is generally easier than adjudicating in the court, with the more hands approach taken by the HFS. One thing to note however is that this can be a lengthy process. Another consideration when bringing an HFS proceeding for paternity is the fact that HFS will only consider matters of parentage and child support. This means that questions related to parental responsibilities, such as establishing a parenting plan and allocating parenting time, will now be resolved in the course of the proceeding. For this reason, you should balance your goals and consider whether it may be more appropriate to pursue your rights in a court of law.
Order of Paternity
A mother has a cause of action to establish paternity for her child with the alleged father that she can bring before a court of law in Illinois. Conversely, an individual who is seeking to establish paternity over a child may bring also bring an action for paternity. These suits can be brought as early as the mother’s pregnancy. A court has standing to adjudicate all the issues related to parentage, including child support, parenting time, and establishing a parenting plan allocating parental responsibility. You can initiate a court case for parentage by filing a petition to determine paternity with your local county circuit court, and serving the respondent parent with summons. The court may appoint a guardian ad litem for the proceeding. The guardian ad litem acts as the eyes and ears of the court, investigating the situation with the purpose of advising the court on the best interest of the child. Note that a child can actually bring a paternity suit on behalf of themselves in the state of Illinois, or through a guardian.
What is voluntary acknowledgment of parentage (VAP)?
A Voluntary Acknowledgement of Parentage (VAP) is a legal document that can be utilized by unwed parents who were never married to establish paternity. Once signed by both parents, the name of the father can be added to the child’s birth certificate. With paternity established, the father will now have the obligations of parentage in Illinois. Note that signing a VAP will mean that the father is responsible for contributing financially to the child’s upbringing. This will be in the form of child support if the father is not the parent with primary parent responsibility in Illinois, i.e., the non-custodial parent. However, only one parent pays child support, so if the father has signed a VAP and the mother is not the parent with primary parental responsibility, she will have a child support obligation to the father.
If someone signs a VAP and subsequently believes they have made a mistake regarding the child’s paternity, they can file a Rescission of the Voluntary Acknowledgement of Paternity form. This document must be signed by at least one of the parents, witnessed, and then filed with the Department of Healthcare and Family Services no later than 60 days from the date the VAP was signed and filed with the HFS. If the rescinding party waits later than 60 days, they will have a difficult time refuting the VAP, as the only way to have the document vacated after this window on the basis that the signature was added as a result of fraud, duress, or a material mistake of fact.
The challenging party has the burden of proof when seeking to rescind the VAP and will likely need to submit themselves to a DNA test. Note that you can only bring a case to rescind a VAP within 2 years of the VAP becoming effective. Minors can sign a VAP in the state of Illinois without parental consent. For more information on the Voluntary Acknowledgment of Paternity form, please check out this article on Voluntary Acknowledgment of Parentage.
My partner is pregnant, how do I establish myself as the child’s legal father in Illinois?
There are multiple routes for fathers to establish paternity at birth, depending on whether the question of paternity is contested or uncontested by the mother. In Illinois, if the paternity of the child is acknowledged by both parties, unwed parents are presented forms at the hospital following the birth of their child.
These documents allow the parents to legally establish paternity. These documents include a verified order to establish paternity by consent, reserving the issue of child support to a later date, and a verified petition to declare paternity. Once signed by both parents these documents can be provided to the clerk of court for the local county circuit court and will be subsequently ratified by a judge, who will enter an order establishing the paternity for the signed father.
Note that if there is an individual presumed under Illinois law to be the father, for instance if the mother was married within 300 days of the birth of the child in question, the petition must include the presumed father’s signature and consent, and if they are not willing to provide this, they must receive procedural notice of the filing.
If paternity is contested, an individual who believes themselves the father can file a petition to determine paternity in circuit court to establish the existence of a father-child relationship. This suit can be brought during the pregnancy, the would-be father does not need to wait until childbirth. That being said, the subsequent court case will almost certainly include a DNA test to establish medically if the claimant is in fact the biological father. This test would only occur after the child’s birth, so the trial will be temporarily on hold until that point. To learn more about these options, please check out this article on Illinois Paternity Law Explained
Which is better, a Voluntary Acknowledgment of Paternity or a Court adjudication finding paternity?
It is always better to have a court order establishing paternity. This is because, while a filed VAP can accomplish having the father’s name added to the birth certificate, until paternity has been established in a court of law, the father will not be able to enforce his rights, with regards to parenting time and parental responsibilities. Outside the birth certificate, a VAP by itself only establishes the financial obligations of fatherhood and can be used to obtain child support. For this reason, unwed fathers should always obtain a court order adjudicating paternity, either with the mother’s consent or via a trial to determine paternity.
Can I vacate paternity in Illinois?
A parent seeking to terminate their established legal parentage status in Illinois will need to adjudicate this issue in a court of law, an obtain a court order approving their relinquishing of their parental rights. This is generally a very difficult process. In any legal matter where a court is making decisions impacting a child in Illinois, the motive of the court is the best interest of the child, and as such will not simply allow a party to vacate their parental rights as a strategy to avoid child support payments. One situation where this can be accomplished is if there is a party willing to adopt the child. Illinois law requires a child to have a maximum of two legal parents, as such if there is a party willing to take legal responsibility of the child courts will allow a current parent to terminate their rights in conjunction with the adoption.
How long does a father have to establish paternity in Illinois?
Illinois law is fairly generous when it comes to timing on brining a paternity action in Illinois. The statute of limitations for a paternity suit is 2 years after the age of majority for the child in questions, so this means when the child turns 20. Note that this is the statute of limitations for both the mother and father to bring a suit to determine paternity.
Can the mother stop me from seeing my child?
This is a complicated question, as there are a number of scenarios in which a mother may try to prevent the child’s father from having access to the child. That being said, the answer in every case is generally speaking no, as a father has legal recourse to pursue a relationship with their offspring. This is a reflection of the fact Illinois law upholds that it is in the best interest of the child to have a meaningful relationship with both of their parents. However, an individual can only pursue their rights as a father once they have been adjudicated the father by a court of law. Note, signing a Voluntary Acknowledgment of Paternity and having your name placed on a birth certificate does not automatically establish your paternal rights. If you are in a situation where the mother of your child is preventing you from consistently spending meaningful time with the child, you will need to bring a legal action to determine paternity. Submitting yourself to a DNA test will move this process forward. Once an individual has been adjudicated the father, it will be very difficult for the mother to frustrate the father-child relationship legally.
One option a mother may unfortunately pursue is a spurious order of protection against the father, with the child’s name included in the protected individuals. Orders of protection are important and valid legal mechanism that allow at risk individuals to have legal protection from a habitual abuser. In theory, this protection can extend to the child if the party seeking the order establishes that abuse has also been flowing to the child. The abuse contemplated in an order of protection can be stalking, sexual, or domestic. Note that abuse does not necessarily have to be physical for an order of protection to be valid. Unfortunately, sometimes this important legal mechanism can be the subject of abuse, where an individual pursues an order of protection for the express purpose of frustrating the child-parent relationship, rather than as a valid means to insulate themselves from threatening behavior. Denying or overturning an order of protection can be a difficult process, essentially you will need to argue that the abuse your former partner is alleging did not occur, this is a situation where contacting a qualified attorney is critical.
If you have adjudicated your legal rights as a father, you can obtain a parenting time order, as part of a larger parenting plan, covered in more detail in a below section. The takeaway here is though, you are likely entitled, depending on the circumstances in your case, to at the very least a minimum of valuable contact with your child. This can look like at least one overnight a week with the child alternating weekends with you at your home. There are rare situations however, where even this baseline contact would be inappropriate in the eyes of the court. If there is a proven history of abusive behavior on the part of the father, or behavior that would put the child at risk in an emotional or physical sense, courts may award the mother sole parental responsibility, not extending any parenting time to the father. If there was a history of abandonment on the part of the father, with a lengthy period in which the father absconded on their responsibilities, visitation with the child will be a more drawn-out process. In this scenario, the court will generally want to start with periodic supervised visit between the father and child, in a public place or at the mother’s residence. This is to ease the child into a long-term relationship with someone who is otherwise a stranger to them. In any case, regardless of past circumstances, if you would now like to pursue a closer relationship with your child it would be worthwhile to speak with a qualified family law attorney who can look at your unique situation and advise you on potential legal paths forward to achieving your goal.
What is an Illinois parenting plan?
In a situation where the parents of a child are no longer living together and would like to establish the legal responsibilities of each parent, they should file with a circuit court to establish their legal rights. As part of this process, each parent will need to file a parenting plan with the court within 120 days of petition for your parental rights. It is always preferable for parents to come to an agreement on the contents of a parenting plan, as this puts the parties who are most aware of the circumstances in the child’s life in control of the process, rather than a judge who will only have the information the parties are able to put in front of them. A plan should include at a minimum, where the child is to reside, the amount of time the child is to spend with each parent, how transportation between each parent’s home will occur, and how major decisions in the child’s life will be made. Beyond these major points, it can be useful to delineate expectations for each parent as much as is practical, while including language for flexibility. Keep in mind that even if the parties do not want to negotiate, the court is almost certainly going to order mediation regardless, as Illinois courts almost always prefer mediation in most situations involving a minor. If the parents are unable to come up with an agreed parenting plan between themselves, and mediation proves unproductive, then the court is empowered to enter an order establishing a parenting plan. The court will consider the arguments of each parent and the facts established in the case in making this determination, following Illinois state guidelines. As part of this process, the court may appoint a Guardian Ad Litem to investigate on their behalf. The court standard for making a decision regarding a parenting plan is always whatever is in the best interest of the child. Failure to abide by a parent plan after it has been entered into law by a court order by either parent constitutes breaking the law, and thus exposes that parent to being taken to court. To learn more about Illinois parenting plans, check out this article on Illinois Joint Parenting Laws.
When can I claim my child on my tax form?
The Internal Revenue Service rules surrounding dependents allows what they define as the custodial parent to claim a child as a dependent for the purposes of a tax form. In Illinois, the law would refer to this individual as the parent with “primary parental responsibility.” The IRS determines the custodial parent as the person who has custody of the child for the majority of nights during a year. This standard is further broken down into where the child sleeps, even if the parent is not present at the time. In a situation where there is a half and half sharing of parental responsibilities, and the child spends an equal number of nights with both parents, then the IRS employs the parents’ income as the tie breaker, awarding the dependent status to the parent with higher earnings. There are special forms the non-custodial parent can file to gain the status of dependent for the child, but they can only file these with the custodial parent’s consent, without this they will be unable to claim the dependent.
If I break up with my child’s mother or father, do I get a share of our property?
In Illinois, property acquired during the course of a marriage is presumed by the law to be “marital property.” In the event of divorce, a court will distribute this property through a process called “equitable distribution,” which seeks an equitable division of assets based on the circumstances of the marriage. When couples are unwed, no such presumption exists, and for the purposes of property law, the couple might as well be complete strangers. Note, in Illinois the law does not recognize the concept of “common law marriage,” as such even couple who have been cohabitating and raising a family for a number of years will not qualify for equitable distribution by a court. All assets that were acquired during the relationship will be presumed to be the property of whoever’s name there are in. Keep in mind that this rule holds for gifts as well, as such expensive presents like rings and vehicles exchanged over the course of the relationship will be unrecoverable if they are in the name of an ex. Note, even if a gift is not in an ex’s name, if they have documentation of the gift, something along the lines of a text or birthday card making it clear they were the recipient, they will likely be able to keep the gift under Illinois law. All this can create a very difficult situation for couples who have been engaged in a marriage like relationship for a significant amount of time, as it is likely representations and promises were exchanged related to major pieces of property.
The easiest way to avoid this situation is to enter into a cohabitation agreement. These agreements formalize the rights and responsibilities of each party as they relate to a piece of property. One important thing to note however, these agreements should not be premised on the existence of the relationship. The law disfavors contracts related to property for marriage-like relationships. Cohabitation agreements should therefore be written in as business-like a manner as possible, with a clear exchange of valuable consideration outside intangibles like a relationship.
A difficult situation arises when couples break up and property is in both their names. They are unlikely to desire to continue sharing the property with their ex. The easiest solution in these circumstances is to sell the property with an agreed distribution of the proceeds between the parties. If former couples are unable to reach such an agreement, they will need to adjudicate the issue in a court of chancery, depending on the county. One option is to attempt to compel the property to be sold. Note, unlike in a divorce trial where the circuit court is empowered to hear all issues related to the marriage’s dissolution, including child support, parenting time, and property distribution, there is no such comprehensive legal venue for a non-married couple breaking up. A circuit court will need to hear all issues related to parentage and parental responsibilities, while a court of chancery will have jurisdiction over questions of property. Note, petitions brought for partition of a piece of real estate must include the exact particular description of the property, as contained in the relevant deed. The simple street address will not suffice.
The most difficult situation regarding property in a break-up is when there have been semi-informal representations related to a major piece of property, with both parties contributing to its purchase based on a shared understanding. Even if the representations otherwise rose to the level of a valid contract, if the property is in only one of the parties’ name, the other party will have a very difficult time adjudicating their interest in the property via a court of law. Oral contracts are a particularly difficult area. While Illinois law recognizes oral contracts as just as valid as a written contract, they are far more arduous to prove in a court of law. Establishing the existence of an oral contract will come down to proving actions were taken by both parties in reliance of a contract. The other major problem with oral contracts is they are only valid for a limited type of circumstances. Most importantly, Illinois statute forbids oral contracts in the area of real estate. In Illinois, all such contracts must be in writing. As family homes are generally the largest purchase a couple will make in the course of their relationship, this can present a serious problem for a party who has made contributions to a home that was not in their name. There are limited legal theories which could potentially help an individual recapture their interest in this scenario, but the thing to keep in mind here is there are legally complicated and difficult to establish in a court of law. This is a situation where an individual would be well advised to consult an experienced Illinois attorney.
Can I collect maintenance or alimony from my former partner if I was financially dependent on them?
When a married couple undergoes divorce, Illinois law provides for the collection of maintenance in the form of money transfers from one spouse to another, in situations where a spouse was financially dependent on the other. The law takes this concept so seriously you can in fact collect temporary maintenance from the beginning of the divorce trial, so as to prevent a lack of financial resources frustrating someone from leaving a deleterious marriage. However, no such concept exists in Illinois law for unwed couples. In a scenario where a couple has been together for a number of years, cohabitating the entire time, with one party financially dependent on the other, there is no legal recourse for establishing maintenance in the event of a break-up. This concept, humorously dubbed “palimony” (a portmantua of the words “pal” and “alimony”) by some legal observers, would allow for divorce like property and maintenance settlements in long term marriage-like relationships. No such concept has entered Illinois law. Keep in mind however, if the couple had children during the course of the relationship, and paternity has been established by the signing a Voluntary Acknowledgement of Paternity or a court order adjudicating paternity, the parent with primary parental responsibility will be able to collect child support to go towards the child’s maintenance.
Request a consultation with an experienced Illinois family law attorney.
The qualified Illinois family law attorneys at O’Flaherty Law are ready to fight for you in your parentage questions. We know the process and can help you reach a better outcome. Call our office at (630) 324-6666, email info@flaherty-law.com, or schedule a consultation with one of our experienced family law attorneys today. You can also fill out our confidential contact form and we will get back to you shortly.
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