When the mother of a child is unmarried at birth in Illinois, the father’s name cannot be added to the birth certificate until paternity is established. This is the case even when the parents are engaged or cohabitating at the time of the birth. In a situation in which a mother is separated but remains married and has a child with someone outside the marriage, the individual the mother is married to is legally presumed to be the parent of the child.
Establishing the paternity of a child with unmarried parents
So, how can paternity be established in situations where the parents are unmarried? There are three ways in Illinois:
- Both parents complete a voluntary acknowledgement of paternity or a VAP, which is filed with the Department of Healthcare and Family Services.
- Establish an administrative paternity order from Child Support Services.
- Establish paternity through the courts.
A VAP establishes a legally valid parent child relationship when the child’s mother and the biological father properly sign, have witnessed, and file the acknowledgement that complies with the requirements of the law. It may be signed prior to birth, but is invalid until the child is born and it is filed with the Illinois Department of Healthcare and Family Services.
Once the VAP is signed and filed with the Department of Healthcare and Family Services, no further proceedings to establish parentage are necessary, and the father assumes all rights and duties as the legally valid parent. However, once the man signs the VAP form, he gives up his right to request genetic testing to establish paternity.
If the mother remains married to a spouse that is not the child’s biological father, then her spouse is considered to be the presumed legal parent under the law. Therefore, a Denial of Parentage by the non-parent spouse needs to be completed and filed along with the VAP. If this is not done at birth, then by law the spouse’s name must appear on the child’s birth certificate.
What if it is later discovered that he is not the father?
In recent years, the law in Illinois was changed and as a result, a VAP may only be challenged in a court proceeding when the circumstances surrounding its signing involved fraud, duress, or material mistake. A proceeding to challenge a VAP has a statute of limitations of two years, therefore, it must be filed in court within two years after the VAP’s effective date. However, if the circumstances for challenging the VAP were kept from the man fraudulently, then the clock would start running on the two years after it became known, or when he reasonably should have known that grounds existed to challenge it.
If the mother or the biological father wishes to do so, they have the right to sign a Rescission of VAP if such a decision is made within the 60 days after the VAP became effective.