CHILDREN OUT OF WEDLOCK
A way that paternity is frequently 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, advises him of his right to genetic testing, the legal consequences of his decision to sign the form and other important information. In a recent 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 a zero chance that 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. In its holding, the Supreme Court held that “the father” did not meet the time requirements, signed directly below the statement outlining his right to obtain genetic testing and refused to over turn his acknowledgment, meaning that legally he remained the parent of a child who everyone knows is not his.
While this may seem to be a very difficult conclusion to accept, it must be noted that the courts seek finality in the determination of parentage. Perhaps the Court was afraid of opening Pandora’s Box.
The Illinois Supreme Court recently 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.
The Fischer ruling is in contrast to previous cases, but makes the standard more consistent with that of children of divorced parents, as it requires the Court to determine if removal is in the best interest of the child. Even if parentage has not been established, one of the factors is whether paternity is likely to be established. If removal from the State is sought, it is incumbent upon the party seeking removal to petition the Court for leave to remove and prove that removal is in the child’s best interest. The statute also provides a vehicle for the non-custodial parent to seek an injunction, or order, directing the custodial parent not to remove the child from the State.
Yet to be determined is exactly how this will work in cases in which there is no voluntary acknowledgment of paternity signed by the father or adjudication of paternity. In that situation, the father’s best way to proceed is to file for an adjudication of parentage and to enjoin removal from the State. This will allow the Court to examine the child’s best interest, looking at numerous factors, such as the child’s relationships with parents and extended family, friendships and the child’s present and proposed communities, among other aspects.
