Parentage Actions
Parentage cases involve never married parents. By virtue
of biology, the determination of motherhood is made at the time
of the child’s birth. The law makes no distinction as to whether
or not the woman is married. If a woman gives birth to a child,
she is deemed to both the legal and biological mother of that child.
As such, the law automatically vests her with all the rights and
responsibilities associated with parentage without regard for her
marital status.
The law is significantly different for Dad. Never married fathers
have an entirely different set of rights than divorced fathers.
First, there is the legal presumption that any child born during
the course of a marriage is the child of the marriage. This presumption
can have harsh results for the biological father if the child is
a result of an extra marital affair with a married woman. If a child
is born to a married woman, the legal presumption is that the child
is the biological son or daughter of the husband. If that is not
true, the biological father must immediately take steps to establish
himself as the legal father or forfeit any legal right to participate
in the life of his child.
In cases where both parents are unmarried at the time of a child’s
birth, Illinois law provides a Voluntary Acknowledgment of Parentage
form which can be signed before the child leaves the hospital. By
so doing, the parties are clearly establishing the identity of the
child’s biological father and preserving the father’s
legal right to the child.
Certain rights and responsibilities attach upon designation as
the “legal” father. For example, child support is an obligation
owed to children by both parents, and the right to receive child
support belongs the child; a parent cannot waive a child’s
right to support. Where the parents never married, however, there
is no legal right of visitation without a court order. This is merely
one of the significant differences between the rights of divorced
fathers and rights of never married fathers. In other words, a never
married father may find himself responsible for paying child support
but may not enjoy visitation rights with his child.
Timing is critical. Although Illinois law allows never married
fathers to petition for custody and visitation of their children
born out of wedlock, any court order affecting the child (e.g.,
a child support order) will operate to vest sole custody in the
mother. This fact can have serious ramifications in the future if
the father should ever seek custody of his child.
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