What Defines Paternity?

August 20th, 2020 by

The birth of a child is almost always a joyful occurrence, with parents celebrating the new life they have brought into the world. However, this can also be an emotionally and legally confusing time for parents whose relationship isn’t traditionally defined.  People conceive and have children in many different relational circumstances. It could be a man and woman or a same-sex couple. They might be unmarried, married, or divorced. It could be that the child was conceived completely outside of a traditional relationship — when one or both parties were married to another person, or through a one-time encounter. In cases where the parents of a child aren’t married, a parentage case may be filed by one of the parents, to establish parental rights and responsibilities of both parents.

First of all, what is paternity? Black’s Law Dictionary defines it as being “the quality, state, or condition of being a father, especially a biological one; fatherhood.” Essentially, it is establishing that someone is the parent of a specific child. Nowadays, in order to be more inclusive to couples which may not be traditionally a “mother and father” pairing, many courts will refer to these kinds of cases as “parentage” cases. Under the law, there are different ways to determine the parentage of a child, and they are specific to whether or not the statute is talking about mother or father. 

A BIRTH CERTIFICATE IS NOT ENOUGH

There is a longstanding misconception that a birth certificate legally declares the father of a child. After birth, any name can be entered onto a birth certificate but having a name listed on the certificate does not automatically grant legal rights to the person listed as the father but a birth certificate does not establish paternity.  In fact, one could place a cartoon character or a historical figure on a birth certificate without any verification process. In cases in which an unwed man and woman have a child together, many people choose to clarify their parental standings by signing a Voluntary Acknowledgment of Paternity.  A Voluntary Acknowledgement of Paternity functions to show that both the woman and man recognize they are the biological parents of the child in question. They accept legal paternity, with the privileges and responsibilities associated with that position. 750 Ill. Comp. Stat. Ann. 46/305(a).  Substantiating legal paternity is important for a father-child relationship to flourish. It allows the child access to benefits like Social Security, medical insurance, and other state, federal, and inheritance opportunities available. The establishment of legal paternity is the first step in the legal process for every child subject to a Parentage Action to ensure protection and provisions for each child.

A Voluntary Acknowledgment of Paternity (VAP) is the simplest way of establishing legal paternity. More specifically, it serves as a legally binding agreement that acknowledges the father as the biological father of the child. Id. It ensures that the child is provided for financially and medically. By signing the VAP, both parents waive their right to obtain genetic testing to determine the father of the child.

It is important to note that a VAP does not establish parental decision making, parenting time rights, or child support; however, it is often used in court proceedings when there is a conflict between parents. Signing a VAP could mean an onset of financial obligations; therefore, it is essential that a father is certain of his paternity before signing the VAP.

Some people choose to sign a Voluntary Acknowledgment of Paternity with the knowledge that they are not the child’s biological parent, and that is permitted by law. If a non-biological father wants to become a legal parent, it is important that he understands that signing a Voluntary Acknowledgment of Paternity is a serious legal matter not to be entered into lightly and is a legally binding document. It is not always easy to remove a Voluntary Acknowledgment of Paternity if you should change your mind after it is signed. The State of Illinois allows for the mother or father to withdraw their Voluntary Acknowledgment of Paternity within 60 days of the date of signing.

What happens if a father is not aware his child was born?

He is not at the hospital, so he did not sign a VAP?  The mother does not list the father’s name on the birth certificate.  What recourse does the father have to obtain parentage of the child and receive parenting time and decision making for the child?  He must file a complaint with the Court requesting to establish himself as the father of the baby. The father and/or mother may request the Court to enter an order requiring a DNA test to establish the parentage of the child.  If neither parent makes a request of the Court for a DNA test, in most cases the Judge will order a DNA test without the parent’s request.  If the DNA test comes back identifying both parties as the parents of the child, the Court will enter an order establishing the parentage of both parties and the process of scheduling parenting time, establishing parental responsibilities, and setting child support will begin.

If you are involved in a paternity dispute, speaking with a legal professional may help you navigate the process. To schedule a free, no-obligation consultation with one of our Family Law Attorneys to discuss your paternity questions, please contact our office at 815-600-8950 or message us here.

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