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Prairie State Legal Services Answers to Common Questions About Paternity, Child Custody, Visitation and Support
I've heard the expression "Legal Paternity".
What is that?
I've heard the expression "Legal Paternity". What is that? Back Paternity is the relationship between a father and his child. "Legal paternity" is paternity established by law. State law recognizes only the legal father as having certain rights and responsibilities. In Illinois, a man is a child's legal father only if:
I'm on my child's birth certificate. Isn't that enough? No. Being listed as the child's father on his or her birth certificate by itself has no legal significance in terms of paternity. Similarly, it is not enough that a child have his father's last name or that the father has admitted that the child is his. Only marriage to the mother, as set out above, a court order or Public Aid administrative order of paternity, or a voluntary acknowledgment of parentage or paternity makes a man the child's legal father. Special note for babies born since August 1996: in August 1996 Illinois law governing birth certificates was changed. Under the old law, a man could be listed on a birth certificate as the father as long as he and the mother agreed that he be listed. Many men were listed on their children's birth certificates even though there was no legal paternity. Starting with birth certificates issued on August 9, 1996, a man may be listed on the birth certificate only if (1) he was married to the mother at the time of birth or conception or (2) he and the mother have signed a voluntary acknowledgment of parentage. (Where paternity is established later by court or Public Aid administrative order, a new birth certificate can be issued with the father's name.) In other words, as of August 9, 1996, only the legal father may be listed on the birth certificate. Does establishing paternity take a big court case? Back It depends. First, if people agree they can establish paternity by consent. Until August 9, 1996 this was done through a court case. Now it can be done using a form called "acknowledgment of parentage" This form has the force and effect of a court order in establishing paternity. Child support still must be established by court or Public Aid Administrative order. When the father and mother do not agree, a court case or Public Aid administrative hearing is necessary to establish paternity. Either the mother or the father can file a court case against the other. The case also can be filed on behalf of the child, by the child when he or she is grown, or by a state agency such as Public Aid or DCFS if that agency is supporting the child. A man alleged to be the father does not have a right to a court-appointed lawyer if he cannot afford to hire an attorney. As of January 1, 1998, the law was changed. It now says the court "may appoint" an attorney to represent the alleged father. If you were sued in a paternity case, you wish to fight the case, and you cannot afford an attorney, you should still ask a judge to appoint a lawyer for you; the judge may decide to appoint an attorney. If the court does appoint a lawyer, that person will be appointed to represent you only on issues of whether you are the father and of child support, but not on visitation, custody, support enforcement or property issues. If the person sued in the paternity case denies the claim of paternity, a trial could result. Blood tests are very good at proving whether or not someone is the father, however. Therefore court cases are most often settled. As part of the paternity case, custody, visitation and support can be set by the judge. There are time limits on when a paternity case can be filed in court, but the law on this point is confusing. In many cases, the court case can be filed until the child's 18th birthday and in certain cases even until he is 20. A father may be barred [stopped] from bringing a paternity case if he has not visited, supported, or communicated with the child for 3 years. It is usually best to file a paternity case as soon as possible, while the child is young and the evidence is fresh. It also is very important for the father to file with the Putative Father Registry immediately upon the child's birth, as discussed at the end of this pamphlet. What is the Public Aid Administrative Hearing? Under a new law, paternity can be established in a hearing before a Public Aid hearing officer instead of a judge. In most cases, the mother must name the father in order to receive Public Aid. [Exceptions may be allowed, for example, where the father is a serious danger to the mother.] Lawyers working for the state then get a paternity and child support order. The Department of Public Aid plans to start using the administrative procedure for these cases rather than going to court. The administrative order has the force and effect of a court order and may include an order for payment of support. What if I'm married to someone but he isn't the father? Back For a child born or conceived during a marriage, Illinois law assumes that the mother's husband is the father until a lawsuit is filed and a court issues an order saying that he is not the father. This kind of lawsuit generally must be filed within two years of the child's birth. No court or administrative order of paternity against the real father can be made until there is an order that the husband is not the father. My girlfriend is threatening to move out of state with my child. How do I stop her? You may or may not be able to stop her. Again, a paternity order is what is needed. Once there is a paternity and custody order, the custodian [the person the child lives with] may need court permission to leave the state. When the court lets a custodian leave the state with a child, visitation arrangements can be made so that the other parent still is able to see the child. If there is no order of paternity or custody, as a general rule the mother may leave the state. If she is determined to leave, it may not be possible to stop her even if there is a custody order, but it could be easier to get law enforcement officials to help you bring her back if she leaves without permission. I have the opposite problem. I want to leave the area to get away from my old boyfriend. Can I? Back If there is no court order of paternity, there is probably no reason you cannot leave Illinois. If you did leave, however, your old boyfriend still could file a paternity case here, and you would have to return to Illinois to fight the case. If you didn't participate in the case, your former boyfriend might win from the court whatever he was asking, even custody. In some cases, hiding the children from the other parent is a crime. For all these reasons, it is best to establish paternity and custody in court and get permission to leave Illinois before you go. I thought men never get custody. In the past, Illinois had a rule that young children were placed with their mother unless she was unfit. That rule has been thrown out as unconstitutional discrimination against men. Men now must be treated equally with women in custody cases. What factors will a judge look at in deciding who should get custody? Back The basic test for deciding custody in Illinois is the "Best Interest Test." In other words, the judge will ask: "with which parent will the child be better off?" The kinds of things the judge will consider include:
Some people mistakenly think joint custody means that a child must spend half of his time with each parent. In fact, joint custody means joint decision making. A child may still spend most of his time with one parent, but if there is joint custody the other parent can participate in important decisions, such as whether the child will attend public or religious school. My ex-boyfriend wants to see my child. Do I have to let him? Unless your ex-boyfriend gets a paternity and visitation order, he does not have the right to force you to let him see the child. If you do not think he is a danger to the child, you might want him to visit, since most children benefit from contact with both parents. Also, seeing his child might encourage him to pay support. If there is a court order setting out visitation, there are legal actions, including contempt of court and even possible criminal charges, which can be taken against a parent who denies the other visitation. If you start to believe that the man is a danger to the child, you need to go back to court as soon as possible to ask to have the order changed. Whether to allow visitation while you wait to get back into court is a difficult decision you should discuss with a lawyer. My girlfriend is not letting me see my child. I have decided I am not going to give her any child support. Back Illinois law does not see visitation as an exchange for child support or visa versa. The court can hold the non-custodial parent in contempt for not paying child support even if visitation is being refused; the court can hold the custodial parent in contempt for not letting the other parent visit even if child support has not been paid. Where there is no court order for visitation, however, the non-custodial parent is really at the mercy of the custodial parent in terms of getting to visit his or her child. Before you refuse to pay support, remember that not paying child support harms the child. Also, not paying support could be used against you later if there is a case filed to cut off your parental rights or if you decide you would like to get custody. My ex-boyfriend has visitation rights, but most of the time he doesn't show up. It's very upsetting to my daughter. What can I do? There is little to be done from a legal point of view in this situation. A judge cannot force a parent to visit. On the other hand, most judges will not cut off visitation just because a parent fails to exercise it. A complete lack of interest in the child, if it continues over time, however, could be the basis for cutting off the parent's parental rights. I never want to see my child's father again. My child likes my new boyfriend, so if the father asks the court for visitation I'll ask the judge to say he can't see my child. Back The law is strong in allowing both parents to have contact with their children and even discourages judges from putting limits on visitation, like requiring a supervisor to watch the visits. A parent will be cut off from all visitation only in the most extreme circumstances, such as a violent felon who has harmed children. Supervised visitation may be ordered if the non-custodial parent has a substance addiction or history of abuse to the child. In most other cases, judges order unsupervised visitation. What kind of visitation schedule is a judge likely to order? The answer depends upon the child's age and whether there is somewhere for the child to sleep during overnight visits. Most often overnight visitation is allowed, except with very young children. A common arrangement is visitation every other weekend from Friday through Sunday, one evening each week, and every other holiday. How does the Judge decide how much child support the other parent must pay? Back Illinois law sets out a basic guideline for setting support. Support can be set higher or lower than the guideline where there are special circumstances, such as a child who needs special care. The guideline is set as a percentage of net (after tax) income. For one child, support is set at 20 percent of net pay; for two children, 28 percent; for three children, 32 percent. How is support paid? In most cases, the law requires that support be taken directly out of the non-custodial parent's pay checks. This works well for a parent with steady employment, but can be difficult to enforce if he changes jobs often, is paid "under the table," or is self-employed. Where the custodial parent is not on AFDC, the employer can be ordered to send the money to that parent or to the Clerk of the Court. For aid recipients, payment must go to the court. Payment to the court helps prevent arguments later over whether support really was paid, because the clerk keeps a record of payments. My girlfriend wants to put our new baby up for adoption. Can I stop her? Back All unmarried men who engage in sexual relations need to be aware of the Illinois Putative Father Registry. This is a list kept by the Department of Children and Family Services where men who know or think that they may be the father of a newborn can register this fact with the State. Fathers must file within 30 days of a child's birth but they can file before the child is born. Registration is fairly simple; the father must
If the man registers within the 30 day deadline, then no adoption case can go ahead without him being notified and either agreeing to the adoption or being proven unfit. If the man does not register, it is possible the child could be put up for adoption without him being notified. It is very important to understand that lack of knowledge of the pregnancy or birth is not a reason under the law for failing to sign up with the Putative Father Registry. If a man wants to protect his parental rights, he should register whenever he thinks he even might have made a woman pregnant. Registering is important even if you do not think the mother might put the child up for adoption. The law is very new and the courts have not had a chance to interpret
it, but one part of the law might mean that a man who does not register
cannot even file a paternity case. The telephone number for the Putative
Father Registry is 1-800-420-2574. Registering is free.
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