Legal Question in Family Law in Illinois

Unmarried Fathers have no rights until paternity is established

The Illinois Parentage Act of 1984 (750 ILCS 45/1, et seq.) sets forth the manner for legally establishing a parent-child relationship between you, as the natural father, and the child. Section 2 of the Act defines that relationship as �the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.�

Section 4 of the Act provides that: �the parent and child relationship between a child and . . . the natural father may be established under this Act.� Section 9(a) states in part: "In any civil action not brought under this Act, the provisions of this Act shall apply if parentage is at issue." In other words, the ONLY way you can establish that you are the natural father of this child is through the Illinois Parentage Act.

In the case Kapp v Alexander, 218 Ill. App. 3d 412, 578 N.E.2d 285 (3rd Dist. 1991) the appellate court was called upon to answer the question as to whether a father could gain any rights in a child (the father there wanted rights in custody and visitation) without first establishing his paternity under the Illinois Parentage Act. The court held: �It is our view that natural fathers in this situation may not avoid the provisions of the Parentage Act . . . by using alternative procedural routes in seeking to obtain incidents of the father and child relationship (such as custody or visitation rights), unless such a relationship has previously been legally established.�

In sum, you have NO legal rights in the child whatsoever until you are first declared by a court* to be the natural father of the child. Until then, you are a legal stranger to the child.

* Note that the Illinois Department of Public Aid may make administrative determinations of paternity and nonpaternity in accordance with the Illinois Public Aid Code. Under Section 4.1 of the Parentage Act, �these determinations of paternity or nonpaternity shall have the full force and effect of judgments entered under this Act.� Even if the Department of Public Aid has declared you to be the natural father, you�ll have to go to court to obtain or enforce your right to visitation.

Re: Unmarried Parents Rights and Contract

Fathers have rights to see their children. That's the easy answer. Unfortunately, not every mother will respect that and it is necessary to go into court and have the judge order such visitation in order to make the mother comply. If you signed and agreed to something regarding visitation, etc. that's great but unfortunately again if you are having problems with visitation etc. then you must get into court to have it enforced. You don't HAVE to see an attorney for anything, however, an attorney can help you navigate the legal system and ensure that your rights are protected.

Follow-up email to Lawyer Roger H. Kelly

Hello, I thank you for your reply to my questions. I wish that with all the attorneys I have met with and paid, one of them would have explained what you have! My daughter is going to be 10 years old this month on the [x date] and all of her life I supported her! I provide both medical and dental insurance for her and remember signing an acknowledgment of paternity in the hospital when she was born. If this changes anything please let me know.

As far as the law is concerned, it is doing no justice for children! Children have the right to both parents not just the mother! When my daughter was born I supported the mother and my child for two years and when the relationship did not work out, I still supported my child! On My Own! Not Court Ordered! I feel if I am supporting my child and she knows me as her father, then I am her father. I should have the right to see and speak with her. Her mother has no problem accepting money but seems to enjoy hurting my daughter by keeping her from me.

Why if the mother and father put a contract in writing and sign and date it, is it not considered legal? Can you explain this to me? Why, if I support my daughter, is the mother allowed to keep her from me? I am not trying to be rude, I am just expressing some things and concerns. Please let me know if in my circumstance if this should change anything according to your response. Thank you for your response.

Reply Part 1 to Follow-up email

Dear [X],

It is a tragedy when innocent children are caught in the middle. I commend you for supporting and visiting your daughter all these years. Please don't give up now.

Let me begin by stating to you that, although I am pleased to give you some insight, we have not entered into an attorney-client relationship as a result. Stated simply, I am not your lawyer.

So, . . . you ask "Why if the mother and father put a contract in writing and sign and date it, is it not considered legal?" Although your private contract would likely be considered by a paternity court in making its determination about such things as support and visitation, the contract is not binding on the court. This is because matters concerning children are one of the areas where courts must make an independent determination of what is in the best interests of a child, regardless of what the litigants might privately agree upon.

Imagine the alternative to court proceedings: countless individual contracts between unmarried mothers and fathers regarding paternity, support, and visitation would be made. No two contracts would be the same. Some number will be based upon fraud which would have been exposed in court proceedings. Others may be based upon coercion, threat, unequal bargaining power, or perhaps even violence. Some will require the non-custodial parent to pay the proper amount of child support, and some won�t. [Does yours?] Some will provide for reasonable visitation, and some won�t. Some will be based upon the best interests of the child, and others will be based upon the parties� self interest, greed, fear, anger, revenge, or other particularly personal motive. And the child who is the subject of the contract would have no rights, no voice, no justice, no equity. Permitting private out-of-court contracts to decide who the father of the child is, what his obligations to the child are, and what rights the father and the child have between them, lets two people decide everything without anyone being involved to represent and protect the child.

Your email says it. �As far as the law is concerned, it is doing no justice for children! Children have the right to both parents not just the mother!� It IS the law which guarantees that a child has both parents. If the law was side-stepped by private contract, justice for the child would be left in the hands of two self-motivated persons. And if the private contract provided that the child will NOT have the rights to both parents, then that�s the way that would be. You can�t have it both ways: i.e., a private contract AND justice under the statutory system which serves children of unmarried parents.

[continued to Reply Part 2 to Follow-up email]

Reply Part 2 to Follow-up email

[continued from Reply Part 1 to Follow-up email]

Worse, it private contracts were sufficient to dispose of proper legal proceedings, the paternity statute would become optional only. At the same time that side-contracts about paternity flourish, some of those who would otherwise have dealt with the issues in a paternity court (and in accordance with established law, based upon evidence presented to an impartial tribunal, in a system intended to serve and protect the best interests of the child) would opt out of the court procedure for reasons totally, totally unrelated to the best interests of the child. Thus, even fewer paternity cases would be heard and fewer children would have protection by a court and the assurance of knowing who their father was.

Consider too, even if private contract were permissible, where would the parties go to enforce the contract? Answer: the courts.

Why stop with paternity? Under the notion that two persons can privately avoid the strictures of law, shouldn�t adults who want to enter into a private contract for divorce be permitted to do so? And after they do that, can they re-marry? After all, the husband and wife entered into a contract which declared them divorced. No, divorces must be granted by courts. And paternity must be established in the courts. That�s good public policy. More importantly in your situation, that�s the way it is whether you agree with it or not.

As you can see from your own situation, the private contract between you and the mother did not work out. Now you must go to court to gain your rights, but you would have had to do that anyway even if the contract were enforceable. Do what you must do: file a paternity case. And even though the statute of limitations in such a case may have expired, a case can be brought either in the name of the child, or brought with the assertion that the mother should be estopped to interpose the limitations defense. On this latter point, estoppel, you private contract will be very valuable. See a lawyer on this, and get things started. Your child will benefit by it.

Reply Part 3 to Follow-up email

Dear [X]:

Thank you for your email response. This email is just a follow-up with a bit of interesting information.

You will recall my email of yesterday regarding Illinois� paternity laws and the need to go to court to establish your paternity, even if you and the mother had entered into a written agreement to resolve on various issues. I mentioned the importance of using the system, and among my points was that the court system was better able to protect against fraud in paternity matters. The reality of paternity fraud was addressed this last Monday by passage in the Illinois legislature of House Bill HB2267. The text of the new law reads as follows:

�AN ACT in relation to criminal law.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 5. The Criminal Code of 1961 is amended by adding Section 17-26 as follows:

(720 ILCS 5/17-26 new)

Sec. 17-26. Paternity fraud.

(a) A person who knowingly alleges that a person is the biological father of a child when that person knows that the allegation is false commits the offense of paternity fraud. (b) Sentence. Paternity fraud is a Class A misdemeanor.�

So, as you can see, paternity fraud is recognized as occurring frequently enough to warrant making it a crime.

Second follow-up email to Lawyer Roger H. Kelly

Hello again, I was wondering if you would be able to answer a few more questions for me? I wanted to make sure that I am not breaking any laws by going to see and call to speak with my daughter. In other words since the mother and I have never been to court for any reason, I wanted to know if because there are no court orders for visitation or any barring me from my child, am I breaking the law by going to see her? If I should decide to go to court over this matter, I would hate to be doing something that would work against me. The mother does not invite me to come, I just show up but she also does not tell me to leave once I am there. She does scan all of my calls with caller ID and decides when she will let me speak with my daughter. The mother also has the tendency to call after months of not allowing me to speak with my daughter and verbally abuses my wife and yells at her telling her my daughter needs her father! I find this to be very strange considering she is the one deciding when I can and cant see and speak with my daughter. I was also wondering if because I signed Acknowledgment of Paternity when my daughter was born and I am her birth certificate, is this considered legal Paternity? If you could answer these questions I would greatly appreciate it. Thanks again, take care.

ps. Do half brothers and sisters have rights to a relationship with each other? My wife and I have a 4 year old son.

Reply to Second follow-up email

Standing alone, you break NO laws by going to see your daughter, even if your paternity has not been legally established. If you go about doing it in a harassing, violent, or objectionable way, that would be another story.

One of the advantages of going to court to establish paternity is that the court will grant you the RIGHT to liberal visitation with your daughter, and if cooperation with the mother is lacking, you can ask the court for a schedule of visitation. You can also ask the court, and probably will be granted, the right to unimpeded communication with your daughter. The mother will no longer be �the one deciding when I can and cant see and speak with my daughter.� Certainly, a court order will not eliminate the animus and haggling you get from the mother, but you will have rights which will be enforced by the courts.

An executed Acknowledgment of Paternity and a showing of your identity on the birth certificate is not enough to legally establish your paternity nor give you enforceable rights in your daughter. The Acknowledgment of Paternity and birth certificate provide good evidence of your paternity, but as my prior responses indicate, ONLY a court (or the Department of Public Aid) can legally declare you to be the natural father. Until this is done, you are a legal stranger to her.

With regard to your daughter�s half-brother, he can see his half-sister when she is visiting in your home with you. Yes, your right to visitation would normally include the right to take your daughter with you for visitation (including overnight visitation) so you won�t have to sit in the mother�s house, in front of the mother, to meet with your daughter. When you have independent unsupervised visitation, you�ll be free to do what you wish (outings, celebrations, shopping, just-staying-at-home, etc.) You�ll be able to knit with your daughter as a family unit, including letting her and her half-brother naturally develop a stronger bond in a supportive environment. And should you choose to do so, you can ask the court, and may well be granted, the right to unimpeded communication between the half-siblings.

Re: Unmarried Parents Rights and Contract

Please let me clarify that my response was geared towards a father already having established his paternity. I apologize if I made assumptions and did not make this clear.