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Parentage / Paternity Cases

What is Paternity?

“Paternity” in its essence is the state of being a father. “Paternity establishment” is the legal process of adjudicating who is the father of a child and creating the existence of a father/child relationship. Once Paternity is established the court can order child support, visitation and custody.

Why establish Paternity?

If a child is born to an unmarried couple, there is no presumption that a certain individual is the father. As a result, the father has no rights to the child and the child has no legal ties to the father. Establishing Paternity insures a child’s right to child support, health insurance, eligibility for benefits and rights of inheritance. In addition, it guarantees an unmarried father’s parental rights of visitation and requires that he be contacted prior to the child being put up for adoption.

How do you legally establish Paternity?

There are three ways to establish Paternity:

  1. If there is no doubt as to the paternity of the child, a Paternity Acknowledgment Form can be signed at the hospital when the baby is born. However, if a man signs this document it has the same effect of a judgment establishing paternity. Therefore, most attorneys do not recommend that a man sign a voluntary acknowledgment of paternity without first having genetic (DNA) testing completed.
  2. A mother or putative (alleged) father may file a petition in court seeking to establish a parent-child relationship. Upon either agreement of the parties or a ruling by the court, a final order of paternity will be entered which will specify child support, visitation and custody.
  3. If the mother and putative (alleged) father marry after the birth of the child, the child is legally assumed to be the child of the father unless specifically refuted by the father.

Who can file a case to establish Paternity?

An action to establish paternity or the existence of a father child relationship can be brought by the child; the mother; a pregnant woman; or any person or public agency who has custody of, or is providing support to the child.

How long does a person have to file a case to establish Paternity?

A petition to establish paternity or a father/ child relationship must be filed prior to two years after the child reaches majority.

What is Genetic (DNA) Testing?

Genetic testing or more commonly called DNA testing, determines the probability of a specific man being the father of a child. If the genetic testing results show a 99% or greater probability of paternity, a person will be presumed under the law to be the father of the child. There are two types of genetic testing. One is done with blood samples. The other is called a “buccal swab”, or “swab” test. For the swab test, q-tips are rubbed inside the mouth to obtain cell samples. In both tests, samples are taken form the mother, child and putative (alleged) father.

How is the Child Support obligation determined?

Every parent has an obligation to financially support their minor child. This obligation includes providing for the reasonable and necessary physical, mental, and emotional needs of the child. The non-residential parent has the obligation of paying support.

The Court shall determine the minimum amount of support by using the following guidelines:

Number of Children Percent of Supporting Party’s Net* Income
1 20%
2 28%
3 32%
4 40%
5 45%
6 or more 50%

* Net Income is defined in Section 505 of the Illinois Marriage and Dissolution of Marriage Act.

What is Custody and how is it determined?

Custody is a legal term of art that defines who has the right to make important decisions on behalf of a minor child. These decisions include but are not limited to education; medical treatment; and religious affiliations. The court determines which parent shall have custody of the minor child or if the parents should share custody. In order to make such a determination, the court needs to decide what is in the best interests of the minor child. To determine the best interests of the minor child, the court examines all relevant factors of the child’s life. These include the wishes of each parent; the wishes of the child; the interaction and relationship of the child with his parent or parents, and siblings; the child’s adjustment to home, school and community; mental and physical health of both parents; any violence; any abuse; and the ability of the parent to facilitate a relationship with the other parent.

How is Visitation established?

Every parent is entitled to reasonable visitation rights with their child unless the court finds that visitation would seriously endanger the child. Within a case to establish paternity, the father may file a petition requesting that the court grant him visitation rights with his minor child. The court will enter an order specifically stating when the visitation is to take place and the duration of the visits. The standard visitation schedule is one night a week for dinner; alternating weekends; and extended visitation over school breaks and summer vacations.

For More Information:

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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 60 years of combined trial experience in the Illinois divorce courts of Cook, DuPage, and Will counties.

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