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Practice Definitions - Paternity
Paternity
Paternity refers to the legal establishment of who is the father of a child. While the identity of a child's biological mother is usually by nature easy to establish, the father's identity may in some cases be uncertain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care, and other issues.

Paternity Actions in Court

An action to establish paternity is a civil proceeding. Most states require that paternity be established by a "preponderance of the evidence," which means that it must be more likely than not that the man is the father of the child. Other states, like New York, apply a higher standard, requiring clear and convincing evidence of paternity. In reality, however, the different standards have little practical impact in light of recent developments in scientific testing.

DNA Testing and Paternity

The advent of DNA profiling was a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from its biological parents. First the child's genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If the man does have such characteristics, the probability of his paternity is calculated. DNA testing can establish a father's paternity with over ninety-nine percent accuracy. DNA testing can be done even before the child is born.

Establishing Paternity

DNA testing is generally done only when one party contests the paternity allegations. For instance, the putative (or "alleged") father in a paternity action that is the basis for child support collection may require proof that he is the child's father before he consents to payment of support. In other cases, the mother may contest the putative father's paternity, such as when a man attempts to gain custody of or visitation with a child he believes to be his. In many other cases, there is no argument between the parents, and paternity can be established voluntarily. Paternity may also be established by circumstantial evidence, such as when a man takes the child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage.

Once paternity is established, the father may be ordered to pay child support for his child. A father who is not married to the child's mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. When faced with these issues, it is important to seek the counsel of an objective, experienced lawyer.

Paternity Frequently Asked Questions

Who is legally recognized as a child's father?

The question "Who is the father?" is not as simple a question as you might think. There are important legal distinctions between different situations relating to paternity.

Acknowledged Father

An acknowledged father is any biological father of a child born to unmarried parents for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

Presumed Father

If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:
  • He was married to the mother when the child was conceived or born, although some states do not consider a man to be a presumed father if the couple has separated
  • He attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the "marriage"
  • He married the mother after the birth and agreed either to have his name on the birth certificate or to support the child, or
  • He welcomed the child into his home and openly held the child out as his own.
In some states, the presumption of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child. A presumed father must pay child support.

Equitable Parent

In Michigan (Atkinson v. Atkinson , 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H. , 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

Unwed Father

An unmarried man who impregnates a woman is referred to as an unwed father. Unwed fathers have few rights concerning their children. For example, an unwed father does not have the right to require the mother of the child to obtain his consent, or even notify him, before she undergoes an abortion. If the mother decides to bear and keep the child, however, the unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, he has the right to visitation with his child and may seek custody.

Stepfather

A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.

I want the father of my child to pay child support. How can I legally establish the paternity of the man whom I know is my child's father?

A court suit filed to have a man declared the father of a child is called a paternity action. It can be brought by either the mother or the father. If paternity is established, the court will order the father to pay child support and grant him custody or visitation rights. Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy, and can rule out paternity with 100% accuracy.

Most paternity actions are initiated by welfare officials who provide TANF (Temporary Aid to Needy Families) to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her TANF grant.

Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions.

Adulterine Bastard

Adulterine bastard, though not used in many places, is a term used to describe a child born to a married woman when the woman's husband is not the father of the child. This may occur if a woman becomes pregnant by someone other than her husband during the marriage; if a woman enters the marriage already pregnant (by someone other than her husband); or if a woman, without her husband's consent, becomes pregnant through artificial insemination by donor.

In the past, many divorcing husbands attempted to evade paying child support in these situations, claiming that the children were adulterine bastards and therefore not "theirs." Many states, however, have laws which irrebuttably presume (that is, the presumption cannot be disproved) that a child born during a marriage is the child of the husband, regardless of who the biological father is.
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