Any time parents have a child and are not legally married, they have a number of issues to address when it comes to the child’s rights and future. Establishing legal paternity in the state of Illinois is one of the first and most critical steps. Doing so is important for a number of reasons, particularly because it allows parents to protect their children and their own rights as a parent. Without legal paternity, a father’s rights are especially at risk.

How Legal Paternity Can Benefit You and Your Child

While there are other ways to establish legal paternity in Illinois, the easiest way is for both parents to sign a Voluntary Acknowledgement of Paternity, also called a VAP. This is typically done right at the hospital, as soon as the child is born. If one or both parents are unavailable at the time of birth to sign the form, however, the VAP can be completed and submitted on a later date. In cases where there is apprehension or doubt about signing a VAP, paternity can also be established by means of an Administrative Paternity Order from the Illinois Department of Healthcare and Family Services or an Order of Paternity issued by a judge.

Some important ways the father and child will benefit from establishing legal paternity include the following:

Illinois does not have an automatic presumption of paternity when a child is born out of wedlock. Normally, the husband of the mother is presumed to be the father unless it is proven than someone else is the father. An unmarried father can still claim his legal parental status by signing a Voluntary Acknowledgement of Paternity form after the child’s birth. When there is a disagreement about who the father is, the mother or potential father may need to go to court to prove paternity. A paternity test is usually the definitive way to determine whether a child is related to the father. Why is it important to identify the father of a child? There are good reasons for each party involved.

The Father

A father may want to be part of his child’s life, even if he is not in a relationship with the mother. The best way he can ensure that it will happen is by establishing paternity. As the legal father to the child, he would have a right to parenting time, as long as the child would not be in danger with him. The father could also claim responsibility for the child on a full-time basis if the mother dies, is deemed unfit, or wants to give the child up for adoption.

The Mother

It is difficult for a single mother to support a child, and she may want the biological father to take responsibility for their child. Establishing paternity would make the father responsible for paying child support to cover child-related expenses. The mother may also want access to the father’s family medical history, which the child’s pediatrician could reference to determine whether the child may be at risk for certain medical conditions.

When it comes to artificial insemination and parental rights, there is an important distinction between a known and unknown sperm donor. A man waives his paternity rights and responsibilities when he donates sperm to a medical facility that uses it to impregnate an unrelated woman. The man could not later claim parenting time, and the woman could not force the man to pay child support. However, some men and women enter private agreements for the woman to use a sperm donation to have a child. Illinois courts may not recognize private agreements that claim to waive a father’s parental rights.

Entering an Agreement

Some prospective parents prefer to know the man who will be the biological father rather than using a sample from someone anonymous. They may place a public notice to look for a donor or even ask a friend. When entering a private sperm donor agreement, it is wise for both parties to create a contract that outlines whether:

• The father will have any rights as a parent;
• The mother can request financial support from the father; or
• The father can have a relationship with the child.

It is useful to write out each party’s expectations from the agreement, even if they are unsure whether the contract is legally enforceable.

As a father, you cannot forgo your financial obligation to your biological children, even if you no longer see them after divorcing or separating from their mother. However, you may not be required to make child support payments if you are not the child’s father. Family law courts prefer for a child to have two legally established parents for purposes of support and security. If the court presumes that you are the father, you will need to file a form stating that you deny paternity of the child.

Establishing Paternity

Illinois law assumes that you are the biological father of a child if you were married to the mother during the child’s conception or birth. If you have never been married to the mother, you can still be the legal father if:

• You sign a Voluntary Acknowledgment of Paternity form;
• Illinois Child Support Services enters an order than names you as the father; or
• A court rules that you are the father during a paternity suit.

You should not sign a VAP form if you are uncertain about whether you are the child’s father. You have 60 days to rescind a VAP after its effective date. After the deadline, a court will rescind a VAP only if you can prove that you signed the form under duress or based on fraud or a material mistake. A genetic test can clear up any doubt about your paternity.

An advancement in reproductive technology has created new paternity conflicts that end up in court. When a woman has saved frozen fertilized embryos but the potential father no longer wants to have a child, does the woman still have a right to use the embryos? This situation can arise when spouses divorce, a couple breaks up or the sperm donor changes his mind. State courts have in some cases allowed the women use the embryos, despite the prospective father’s objection. A verbal agreement can be enough to enforce a woman's right to the embryos.

Frozen Fertilized Embryos

Cryopreservation of fertilized embryos has existed for decades, but the survival rate of the embryos has increased in recent years. Women choose to freeze their embryos because: