Don’t I have Rights to My Child?

Whether or not you have rights to your own child seems like an obvious question.  

The answer is ‘yes’​…if the law recognizes it as your child.

Fathers must first establish ‘paternity’.  Mothers don’t typically need to do this – ‘maternity actions’ are not common. There are three common ways (leaving out adoption and gestational surrogacy) to establish paternity  750 ILCS 46/201:

1. Marital Presumption – if the child was born to a woman in wedlock, the law presumes her husband is the father.  750 ILCS 46/204  If a legally presumed father has reason to believe he is not the father, he would need to file a court case to declare the non-existence of paternity under 750 ILCS 46/205.

2. Voluntary Acknowledgement of Paternity – an alleged father executes a document (usually at the hospital where the child was born) wherein he 1) admits he thinks he is the child’s father and 2) waives any chance at a DNA test to prove it.  These become binding thirty (30) days after execution.  750 ILCS 46/301 and 750 ILCS 46/305

3. Judicial Admission – A Judicial admission obviously takes place in front of a ‘judge’ which means it happens in court.  Here an alleged father can admit he is the natural biological father of the child and this can happen with or without DNA testing to prove it.  Usually DNA test results are conclusive, so most alleged fathers don’t often challenge DNA results at hearing (though, technically you could).

   
   

Common Misconceptions

• The Birth Certificate proves paternity -- FALSE

  • This is not true, though easy to understand why someone would think so.  The voluntary acknowledgment of paternity is often mistaken for the birth certificate and vice versa.

• A DNA test establishes paternity -- FALSE

  • Technically, the DNA test is evidence of paternity (and strong evidence at that) but a DNA test alone will not confer rights to the father of the child.  For that he still needs a court order recognizing him as the natural biological father of the child.

• I can still demand a DNA test if I signed a Voluntary Acknowledgment of Paternity – FALSE

  • ‘VAP’s are legally binding after 30 days.  They are usually kept on file at the hospital where the child was born and can be obtained by requesting a copy.  If you signed one, odds are the court will not let you go back on it and request DNA testing on a later date.

    • Note* -- the law does allow for, and I have successfully argued, to invalidate a VAP where fraud can be shown.  If you are misled into believing you are the father of someone else’s child, you can initiate legal proceedings to invalidate a VAP and/or rebut a presumption of paternity.  The alternative is the government may hold you financially responsible for a child that is not biologically yours.  

      
      

These are general principles and governing statutes that will apply somewhat differently depending on the circumstances. While this guide will steer you true in most situations, there’s no substitute for a skilled attorney analyzing your specific circumstances.  Call or email today for a free consultation for your case.