Children Out of Wedlock

Paternity frequently is established is by having the father sign a voluntarily acknowledgement of paternity. This form acknowledges that the man is the legal father of the child for all purposes and advises him of his right to genetic testing, the legal consequences of his decision to sign the form, and other important information. In one Illinois Supreme Court case, a man who signed a voluntary acknowledgement of paternity sought to undo that acknowledgement on the basis that DNA testing showed that he was not the father. He asserted that he signed the acknowledgement based upon the mother’s representation that he was the father, but after he began to doubt that the child was his, he had DNA testing which showed that there was zero chance he was the father. Under applicable law, he had to ask to rescind the acknowledgement within the earlier of 60 days after signing it or the date of an administrative or judicial proceeding relating to the child, such as a proceeding seeking child support. In this case, he did not file within that time frame. The Supreme Court held that “the father” did not meet the time requirements and signed directly below the statement outlining his right to obtain genetic testing and, therefore, refused to overturn his acknowledgment, meaning that legally he remained the parent of a child known to not be his.

While this conclusion may seem difficult accept, it must be noted that the courts seek finality in the determination of parentage.

The Illinois Supreme Court ruled in Fischer v. Waldrop that unmarried couples who have children are still required to comply with Section 609 of the Illinois Marriage and Dissolution of Marriage Act and obtain Court approval to remove children from the State of Illinois.

In 2003, legislation was passed allowing a parent to seek an injunction to prevent either temporary or permanent removal of a child from Illinois. The statute directs the court to consider the previous involvement of the parent, likelihood that parentage will be established, and the impact on the party being enjoined from removing the child.

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