Repeal of the Parentage Act of 1984 and its replacement with the Parentage Act of 2015 (Effective June 1, 2016)
Effective January 1, 2016, The Parentage Act of 2015, 750 ILCS 46/100 et seq., replaces the Parentage Act of 1984, 750 ILCS 45/1 et seq. This article is written to inform our clients of the major provisions of the new law and changes to existing law. If you have any questions regarding establishing parentage, acknowledging parentage or contesting parentage, the attorneys at Allison & Mosby-Scott are experts in these fields.
The first major change is the fact that The Illinois Parentage Act of 2015 is gender-neutral. This means that it provides the same protection for the child’s two parents, regardless of the gender of the parents. Section 102 of the act provides the following new language:
The parent-child relationship, including support obligations, extends equally to every child and to his or her parent or to each of his or her 2 parents, regardless of the legal relationship of the parents, and regardless of whether a parent is a minor.
Section 201(c) provides:
Insofar as practicable, the provisions of this Act applicable to parent-child relationships shall apply equally to men and women as parents, including, but not limited to, the obligation to support.
Moreover, Section 204 which established the presumptions of parentage based on a relationship to the mother are now phrased as the “person” with whom the mother entered into marriage rather than the “man” with whom the mother entered into marriage.
Establishment of parent-child relationship
The Act establishes several ways to establish the parent-child relationship and are similar to the methods in the prior law. Section 201 provides:
(a) The parent-child relationship is established between a woman and a child by:
(1) the woman having given birth to the child, except as otherwise provided in a valid gestational surrogacy contract;
(2) an adjudication of the woman’s parentage;
(3) adoption of the child by the woman;
(4) a valid gestational surrogacy contract under the Gestational Surrogacy Act or other law; or
(5) an unrebutted presumption of the woman’s parentage of the child under Section 204 of this Act.
(b) The parent-child relationship is established between a man and a child by:
(1) an unrebutted presumption of the man’s parentage of the child under Section 204 of this Act;
(2) an effective voluntary acknowledgment of paternity by the man under Article 3 of this Act, unless the acknowledgment has been rescinded or successfully challenged;
(3) an adjudication of the man’s parentage;
(4) adoption of the child by the man; or
(5) a valid gestational surrogacy contract under the Gestational Surrogacy Act or other law.
Presumptions of parentage
Under the Act, the presumptions of parentage are similar to existing law with some minor changes for gender-neutrality and the addition of specific time frames. Section 204 provides:
(a) A person is presumed to be the parent of a child if:
(1) the person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship, except as provided by a valid gestational surrogacy contract, or other law;
(2) the person and the mother of the child were in a marriage, civil union, or substantially similar legal relationship and the child is born to the mother within 300 days after the marriage, civil union, or substantially similar legal relationship is terminated by death, declaration of invalidity of marriage, judgment for dissolution of marriage, civil union, or substantially similar legal relationship, or after a judgment for legal separation, except as provided by a valid gestational surrogacy contract, or other law;
(3) before the birth of the child, the person and the mother of the child entered into a marriage, civil union, or substantially similar legal relationship in apparent compliance with law, even if the attempted marriage, civil union, or substantially similar legal relationship is or could be declared invalid, and the child is born during the invalid marriage, civil union, or substantially similar legal relationship or within 300 days after its termination by death, declaration of invalidity of marriage, judgment for dissolution of marriage, civil union, or substantially similar legal relationship, or after a judgment for legal separation, except as provided by a valid gestational surrogacy contract, or other law; or
(4) after the child’s birth, the person and the child’s mother have entered into a marriage, civil union, or substantially similar legal relationship, even if the marriage, civil union, or substantially similar legal relationship is or could be declared invalid, and the person is named, with the person’s written consent, as the child’s parent on the child’s birth certificate.
(b) If 2 or more conflicting presumptions arise under this Section, the presumption which on the facts is founded on the weightier considerations of policy and logic, especially the policy of promoting the child’s best interests, controls.
As you can see, Section 204 makes the marital presumption of parentage explicitly applicable to same sex married couples. This means that if a biological mother is married to another woman during the relevant timeframes, her wife is presumed to be the parent.
Moreover, the provisions for resolving conflicting presumptions means that more than one man could be presumed to be the father. For example, if a mother is married to one man at conception and another at birth, both would be presumed to be the father under 750 ILCS 46/204(b).
Finally, the timeframe for creation of a parentage presumption based on a marriage that ended before the birth of the child is changed from “the time of conception” to “300 days before birth.” 750 ILCS 46/204(a).
Rebutting the presumption of parentage
Under the new Act, all the presumptions of parentage can be rebutted which is a change from the old act. Like the prior act, presumptions may only be rebutted by “clear and convincing evidence.” Section 206.
Strict Time Limits on Establishing Parenting
The new law imposes much stricter time limits to establish a different person as the legal parent if the child has a presumed, acknowledged, or adjudicated parent. Under the old law, a person with standing to establish paternity was allowed to file suit to establish paternity up until the child’s 20th birthday. This was true even if the child already had a legal or presumed father and could lead to a child having three legal parents. This absurdity resulted because the time limits for challenging an existing parent/child relationship were much stricter and it was not required to challenge the existing parent/child relationship in order to establish a new one. The new law tries to prevent these situations by imposing stricter time limits where the child already has a legal parent.
Under the new law, for a child who has a presumed parent by marriage, a paternity suit can only be brought by an alleged father within two years of when he knew, or should have known, about the relevant facts. 750 ILCS 46/608. For a child who has an acknowledged parent or an adjudicated parent, the time limit is two years after the effective date of the adjudication or acknowledgment for a person other than the child or a party to the adjudication or signatory to the acknowledgement to seek to establish parentage. 750 ILCS 46/609.
For establishing non-existence of a parent/child relationship, the time limit is also two years after when the petitioner knew or should have known of the relevant facts. However, a presumed father can maintain an action to declare the non-existence of a parent/child relationship at any time if the court determines that the presumed father and mother neither co-habited nor engaged in sexual intercourse during the probable time period of conception. 750 ILCS 46/608.
Section 205(d) of the Act provides:
An action to declare the non-existence of the parent-child relationship brought under subsection (c) of this Section shall be barred if brought more than 2 years after the petitioner obtains actual knowledge of relevant facts. The 2–year period shall not apply to periods of time where the birth mother or the child refuses to submit to deoxyribonucleic acid (DNA) testing. The 2-year period for bringing an action to declare the non-existence of the parent-child relationship shall not extend beyond the date on which the child reaches the age of 18 years.
There is also a new provision, 750 ILCS 46/610, which allows a court to deny a motion for genetic testing in a proceeding to adjudicate parentage of a child who has a presumed, acknowledged or adjudicated parent under certain conditions having to do with the conduct of the person seeking the testing, the equities, and the best interest of the child.
Section 610 of the Act states that the court must consider the best interests of the child before ordering genetic testing. Specifically, section 610 states:
(a) In a proceeding to adjudicate the parentage of a child having a presumed, acknowledged, or adjudicated parent, the court may deny a motion by a parent, presumed parent, acknowledged parent, adjudicated parent, or alleged parent seeking an order for genetic testing of the parents and child if the court determines that:
(1) the conduct of the parent, acknowledged parent, adjudicated parent, or the presumed parent estops that party from denying parentage;
(2) it would be inequitable to disprove the parent-child relationship between the child and the presumed, acknowledged, or adjudicated parent; and
(3) it is in the child’s best interests to deny genetic testing, taking into account the following factors:
(A) the length of time between the current proceeding to adjudicate parentage and the time that the presumed, acknowledged, or adjudicated parent was placed on notice that he or she might not be the biological parent;
(B) the length of time during which the presumed, acknowledged, or adjudicated parent has assumed the role of parent of the child;
(C) the facts surrounding the presumed, acknowledged, or adjudicated parent’s discovery of his or her possible nonparentage;
(D) the nature of the relationship between the child and the presumed, acknowledged, or adjudicated parent;
(E) the age of the child;
(F) the harm that may result to the child if the presumed, acknowledged, or adjudicated parentage is successfully disproved;
(G) the nature of the relationship between the child and any alleged parent;
(H) the extent to which the passage of time reduces the chances of establishing the parentage of another person and a child support obligation in favor of the child;
(I) other factors that may affect the equities arising from the disruption of the parent-child relationship between the child and the presumed, acknowledged, or adjudicated parent or the chance of other harm to the child; and
(J) any other factors the court determines to be equitable.
(b) In a proceeding involving the application of this Section, a minor or incapacitated child must be represented by a guardian ad litem, child’s representative, or attorney for the child.
(c) If the court denies a motion seeking an order for genetic testing, it shall issue an order adjudicating the presumed parent to be the parent of the child.
Section 408 deals with ordering genetic testing of family members of the man and states:
(a) Subject to subsection (b), if a genetic-testing specimen is not available from a man who may be the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:
(1) the parents of the man;
(2) brothers and sisters of the man;
(3) other children of the man and their mothers; and
(4) other relatives of the man necessary to complete genetic testing.
(b) Issuance of an order under this Section requires a finding that a need for genetic testing outweighs the legitimate interests of the individual sought to be tested, and in no event shall an order be issued until the individual is joined as a party and given notice as required under the Code of Civil Procedure.
Section 621(b) deals with circumstances in which child is bound by genetic tests and provides:
A child is not bound by a determination of parentage under this Act unless:
(1) the determination was based on an unrescinded acknowledgment as provided in Article 3 of this Act and the acknowledgment is consistent with the results of genetic testing;
(2) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown;
(3) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem, child’s representative or attorney for the child; and
(4) the child was no longer a minor at the time the proceeding was initiated and was the moving party resulting in the parentage determination.”
Voluntary Acknowledgment of Paternity (VAP)
The VAP can now be signed before birth but is not effective until the child’s birth or filing with IDHFS, whichever occurs later. 750 ILCS 46/304. The VAP still becomes conclusive 60 days after its effective date or a court or administrative proceeding, whichever is earlier. Finally, a VAP can only be challenged in court based on fraud, duress, or material mistake of fact. 750 ILCS 46/308 and 309. An action to challenge a VAP may only be brought within two years of the VAP’s effective date, except that time during which the person challenging the VAP is under legal disability or duress. Moreover, if the grounds for relief is fraudulently concealed from the person challenging the VAP, the time in which fraud occurs is excluded from the computation of the two years.
The new Act also seems to modify the way VAPs signed by minors are treated. Under the prior law, a VAP signed by a minor was not conclusive until 6 months after the minor reached majority. Under the new Act, there is no difference between VAPs signed by minors and VAPs signed by adults.
The last item of interest concerning VAPs is that despite the inclusion of same sex couples in the marital presumption law, it appears that unmarried same sex couples still cannot establish a parent/child relationship by signing the VAP as Section 201 is limited to a father and a mother. 750 ILCS 46/201.
Child’s right to bring an action at any time
Under the Act, a child has the right to bring an action at any time, even after the child is an adult if there is not presumed, acknowledged, or adjudicated parent. Section 607 provides:
A proceeding to adjudicate the parentage of a child having no presumed, acknowledged, or adjudicated parent may be commenced at any time, even after:
(a) the child becomes an adult, but only if the child initiates the proceeding; or
(b) an earlier proceeding to adjudicate parentage has been dismissed based on the application of a statute of limitations then in effect.”
Venue for child custody proceeding
Section 604(b) states that a “child custody proceeding is commenced in the county where the child resides.”
Joinder of proceedings
Section 611 provides:
(a) Except as otherwise provided in subsection (b), a proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, child custody or parenting time, child support, dissolution of marriage or civil union, declaration of invalidity of marriage or civil union, legal separation, probate or administration of an estate, or other appropriate proceeding.
(b) A respondent may not join a proceeding described in subsection (a) with a proceeding to adjudicate parentage brought under the Uniform Interstate Family Support Act.
Identification of Child in Proceeding
Section 802(a) deals with how to identify children in pleadings and the use of Social Security numbers in pleadings or orders. Section 802(a) provides: “An order adjudicating parentage must identify the child by initials and year of birth.” Sections 803(c), (d) also provide for use of the last four digits of the Social Security numbers of the obligor, obligee, and child.
Support for non-minor child.
The Act explicitly allows for support for non-minor child under IMDA Section 513. Section 802(m) of the new law provides: “This subsection shall not be construed to prevent or affect the establishment or modification of an order for support of a minor child or the establishment or modification of an order for support of a non-minor child or educational expenses under Section 513 of the Illinois Marriage and Dissolution of Marriage Act.”