danyad said:
i have been legally separatedsince 1997. I lost contact with my husband. I am now pregnant with the guy i am with now. what are the laws on being married and having a baby with somone else ie. whose name goes on the birth certificate? I was told it has to be my husbands....is this true. I was married in RI and now reside in IL. Please help!!!
My response:
Excerpts from the Illinois Parentage Act of 1984:
(750 ILCS 45/5)
Sec. 5. Presumption of Paternity.
(a) A man is presumed to be the natural father of a child if:
(1) he and the child's natural mother are or have been married
to each other, even though the marriage is or could be declared
invalid, and the child is born or conceived during such marriage;
(2) after the child's birth, he and the child's natural mother
have married each other, even though the marriage is or could be
declared invalid, and he is named, with his written consent, as the
child's father on the child's birth certificate;
(3) he and the child's natural mother have signed an
acknowledgment of paternity in accordance with rules adopted by the
Illinois Department of Public Aid under Section 10-17.7 of the
Illinois Public Aid Code; or
(4) he and the child's natural mother have signed an
acknowledgment of parentage or, if the natural father is someone
other than one presumed to be the father under this Section, an
acknowledgment of parentage and denial of paternity in accordance
with Section 12 of the Vital Records Act.
(b) A presumption under subdivision (a)(1) or (a)(2) of this
Section may be rebutted only by clear and convincing evidence. A
presumption under subdivision (a)(3) or (a)(4) is conclusive, unless the
acknowledgment of parentage is rescinded under the process provided in
Section 12 of the Vital Records Act, upon the earlier of:
(1) 60 days after the date the acknowledgment of parentage is
signed, or
(2) the date of an administrative or judicial proceeding
relating to the child (including a proceeding to establish a support
order) in which the signatory is a party;
except that if a minor has signed the acknowledgment of paternity or
acknowledgment of parentage and denial of paternity, the presumption
becomes conclusive 6 months after the minor reaches majority or is
otherwise emancipated.
(Source: P.A. 89-641, eff. 8-9-96; 90-18, eff. 7-1-97.)
(750 ILCS 45/6)
(Text of Section from P.A. 91-308)
Sec. 6. Establishment of Parent and Child Relationship by Consent
of the Parties.
(a) A parent and child relationship may be established voluntarily
by the signing and witnessing of a voluntary acknowledgment of parentage
in accordance with Section 12 of the Vital Records Act or Section
10-17.7 of the Illinois Public Aid Code. The voluntary acknowledgment of
parentage shall contain the social security numbers of the persons
signing the voluntary acknowledgment of parentage; however, failure to
include the social security numbers of the persons signing a voluntary
acknowledgment of parentage does not invalidate the voluntary
acknowledgment of parentage.
(1) A parent-child relationship may be established in the
event of surrogacy if all of the following conditions are met prior
to the birth of the child:
(A) The surrogate mother certifies that she is not the
biological mother of the child, and that she is carrying the
child of the biological father (sperm donor) and of the
biological mother (egg donor).
(B) The husband, if any, of the surrogate mother
certifies that he is not the biological father of the child and
that the child is that of the biological father (sperm donor)
and of the biological mother (egg donor).
(C) The biological mother certifies that she donated the
egg from which the child being carried by the surrogate mother
was conceived.
(D) The biological father certifies that he donated the
sperm from which the child being carried by the surrogate
mother was conceived.
(E) A physician licensed to practice medicine in all its
branches in the State of Illinois certifies that the child
being carried by the surrogate mother is the biological child
of the biological mother (egg donor) and biological father
(sperm donor), and that neither the surrogate mother nor the
surrogate mother's husband, if any, is a biological parent of
the child being carried by the surrogate mother.
(F) All certifications shall be in writing and witnessed
by 2 competent adults who are not the surrogate mother,
surrogate mother's husband, if any, biological mother, or
biological father. Certifications shall be on forms prescribed
by the Illinois Department of Public Health, shall be executed
prior to the birth of the child, and shall be placed in the
medical records of the surrogate mother prior to the birth of
the child. Copies of all certifications shall be delivered to
the Illinois Department of Public Health prior to the birth of
the child.
(2) Unless otherwise determined by order of the Circuit Court,
the child shall be presumed to be the child of the surrogate mother
and of the surrogate mother's husband, if any, if all requirements
of subdivision (a)(1) are not met prior to the birth of the child.
This presumption may be rebutted by clear and convincing evidence.
The circuit court may order the surrogate mother, surrogate mother's
husband, biological mother, biological father, and child to submit
to such medical examinations and testing as the court deems
appropriate.
(b) Notwithstanding any other provisions of this Act, paternity
established in accordance with subsection (a) has the full force and
effect of a judgment entered under this Act and serves as a basis for
seeking a child support order without any further proceedings to
establish paternity.
(c) A judicial or administrative proceeding to ratify paternity
established in accordance with subsection (a) is neither required nor
permitted.
(d) A signed acknowledgment of paternity entered under this Act may
be challenged in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof upon the challenging party.
Pending outcome of the challenge to the acknowledgment of paternity, the
legal responsibilities of the signatories shall remain in full force and
effect, except upon order of the court upon a showing of good cause.
(e) Once a parent and child relationship is established in
accordance with subsection (a), an order for support may be established
pursuant to a petition to establish an order for support by consent
filed with the clerk of the circuit court. A copy of the properly
completed acknowledgment of parentage form shall be attached to the
petition. The petition shall ask that the circuit court enter an order
for support. The petition may ask that an order for visitation,
custody, or guardianship be entered. The filing and appearance fees
provided under the Clerks of Courts Act shall be waived for all cases in
which an acknowledgment of parentage form has been properly completed by
the parties and in which a petition to establish an order for support by
consent has been filed with the clerk of the circuit court. This
subsection shall not be construed to prohibit filing any petition for
child support, visitation, or custody under this Act, the Illinois
Marriage and Dissolution of Marriage Act, or the Non-Support of Spouse
and Children Act. This subsection shall also not be construed to
prevent the establishment of an administrative support order in cases
involving persons receiving child support enforcement services under
Article X of the Illinois Public Aid Code.
(Source: P.A. 89-641, eff. 8-9-96; 90-18, eff. 7-1-97; 91-308, eff.
7-29-99.)
(Text of Section from P.A. 91-613)
Sec. 6. Establishment of Parent and Child Relationship by Consent
of the Parties.
(a) A parent and child relationship may be established voluntarily
by the signing and witnessing of a voluntary acknowledgment of parentage
in accordance with Section 12 of the Vital Records Act or Section
10-17.7 of the Illinois Public Aid Code. The voluntary acknowledgment of
parentage shall contain the social security numbers of the persons
signing the voluntary acknowledgment of parentage; however, failure to
include the social security numbers of the persons signing a voluntary
acknowledgment of parentage does not invalidate the voluntary
acknowledgment of parentage.
(b) Notwithstanding any other provisions of this Act, paternity
established in accordance with subsection (a) has the full force and
effect of a judgment entered under this Act and serves as a basis for
seeking a child support order without any further proceedings to
establish paternity.
(c) A judicial or administrative proceeding to ratify paternity
established in accordance with subsection (a) is neither required nor
permitted.
(d) A signed acknowledgment of paternity entered under this Act may
be challenged in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof upon the challenging party.
Pending outcome of the challenge to the acknowledgment of paternity, the
legal responsibilities of the signatories shall remain in full force and
effect, except upon order of the court upon a showing of good cause.
(e) Once a parent and child relationship is established in
accordance with subsection (a), an order for support may be established
pursuant to a petition to establish an order for support by consent
filed with the clerk of the circuit court. A copy of the properly
completed acknowledgment of parentage form shall be attached to the
petition. The petition shall ask that the circuit court enter an order
for support. The petition may ask that an order for visitation,
custody, or guardianship be entered. The filing and appearance fees
provided under the Clerks of Courts Act shall be waived for all cases in
which an acknowledgment of parentage form has been properly completed by
the parties and in which a petition to establish an order for support by
consent has been filed with the clerk of the circuit court. This
subsection shall not be construed to prohibit filing any petition for
child support, visitation, or custody under this Act, the Illinois
Marriage and Dissolution of Marriage Act, or the Non-Support Punishment
Act. This subsection shall also not be construed to prevent the
establishment of an administrative support order in cases involving
persons receiving child support enforcement services under Article X of
the Illinois Public Aid Code.
(Source: P.A. 89-641, eff. 8-9-96; 90-18, eff. 7-1-97; 91-613, eff.
10-1-99.)
(750 ILCS 45/7)
Sec. 7. Determination of Father and Child Relationship; Who May
Bring Action; Parties.
(a) An action to determine the existence of the father and child
relationship, whether or not such a relationship is already presumed
under Section 5 of this Act, may be brought by the child; the mother; a
pregnant woman; any person or public agency who has custody of, or is
providing or has provided financial support to, the child; the Illinois
Department of Public Aid if it is providing or has provided financial
support to the child or if it is assisting with child support collection
services; or a man presumed or alleging himself to be the father of the
child or expected child. The complaint shall be verified and shall name
the person or persons alleged to be the father of the child.
(b) An action to declare the non-existence of the parent and child
relationship may be brought by the child, the natural mother, or a man
presumed to be the father under subdivision (a)(1) or (a)(2) of Section
5 of this Act. Actions brought by the child, the natural mother or a
presumed father shall be brought by verified complaint.
After the presumption that a man presumed to be the father under
subdivision (a)(1) or (a)(2) of Section 5 has been rebutted, paternity
of the child by another man may be determined in the same action, if he
has been made a party.
(b-5) An action to declare the non-existence of the parent and
child relationship may be brought subsequent to an adjudication of
paternity in any judgment by the man adjudicated to be the father
pursuant to the presumptions in Section 5 of this Act if, as a result of
deoxyribonucleic acid (DNA) tests, it is discovered that the man
adjudicated to be the father is not the natural father of the child.
Actions brought by the adjudicated father shall be brought by verified
complaint. If, as a result of the deoxyribonucleic acid (DNA) tests,
the plaintiff is determined not to be the father of the child, the
adjudication of paternity and any orders regarding custody, visitation,
and future payments of support may be vacated.
(c) If any party is a minor, he or she may be represented by his or
her general guardian or a guardian ad litem appointed by the court,
which may include an appropriate agency. The court may align the
parties.
(d) Regardless of its terms, an agreement, other than a settlement
approved by the court, between an alleged or presumed father and the
mother or child, does not bar an action under this Section.
(e) If an action under this Section is brought before the birth of
the child, all proceedings shall be stayed until after the birth, except
for service or process, the taking of depositions to perpetuate
testimony, and the ordering of blood tests under appropriate
circumstances.
(Source: P.A. 89-674, eff. 8-14-96; 90-18, eff. 7-1-97; 90-715, eff.
8-7-98.)
(750 ILCS 45/8)
Sec. 8. Statute of limitations.
(a) (1) An action brought by or on behalf of a child, an action
brought by a party alleging that he or she is the child's natural
parent, or an action brought by the Illinois Department of Public
Aid, if it is providing or has provided financial support to the
child or if it is assisting with child support collection services,
shall be barred if brought later than 2 years after the child
reaches the age of majority; however, if the action on behalf of the
child is brought by a public agency, other than the Illinois
Department of Public Aid if it is providing or has provided
financial support to the child or if it is assisting with child
support collection services, it shall be barred 2 years after the
agency has ceased to provide assistance to the child.
(2) Failure to bring an action within 2 years shall not bar
any party from asserting a defense in any action to declare the
non-existence of the parent and child relationship.
(3) An action to declare the non-existence of the parent and
child relationship brought under subsection (b) of Section 7 of this
Act shall be barred if brought later than 2 years after the
petitioner obtains knowledge of relevant facts. The 2-year period
for bringing an action to declare the nonexistence of the parent and
child relationship shall not extend beyond the date on which the
child reaches the age of 18 years. Failure to bring an action within
2 years shall not bar any party from asserting a defense in any
action to declare the existence of the parent and child
relationship.
(4) An action to declare the non-existence of the parent and
child relationship brought under subsection (b-5) of Section 7 of
this Act shall be barred if brought more than 6 months after the
effective date of this amendatory Act of 1998 or more than 2 years
after the petitioner obtains actual knowledge of relevant facts,
whichever is later. The 2-year period shall not apply to periods of
time where the natural mother or the child refuses to submit to
deoxyribonucleic acid (DNA) tests. The 2-year period for bringing
an action to declare the nonexistence of the parent and child
relationship shall not extend beyond the date on which the child
reaches the age of 18 years. Failure to bring an action within 2
years shall not bar any party from asserting a defense in any action
to declare the existence of the parent and child relationship.
(b) The time during which any party is not subject to service of
process or is otherwise not subject to the jurisdiction of the courts of
this State shall toll the aforementioned periods.
(c) This Act does not affect the time within which any rights under
the Probate Act of 1975 may be asserted beyond the time provided by law
relating to distribution and closing of decedent's estates or to the
determination of heirship, or otherwise.
(Source: P.A. 89-674, eff. 8-14-96; 90-18, eff. 7-1-97; 90-715, eff.
8-7-98.)
(750 ILCS 45/9)
Sec. 9. Jurisdiction; Venue. (a) The circuit courts shall have
jurisdiction of an action brought under this Act. In any civil action
not brought under this Act, the provisions of this Act shall apply if
parentage is at issue. The Court may join any action under this Act
with any other civil action where applicable.
(b) The action may be brought in the county in which any party
resides or is found or, if the father is deceased, in which proceedings
for probate of his estate have been or could be commenced.
(c) The summons that is served on a defendant shall include the
return date on or by which the defendant must appear and shall contain
the following information, in a prominent place and in conspicuous
language, in addition to the information required to be provided by the
laws of this State: "If you do not appear as instructed in this
summons, you may be required to support the child named in this petition
until the child is at least 18 years old. You may also have to pay the
pregnancy and delivery costs of the mother."
(Source: P.A. 84-848.)
(750 ILCS 45/9.1)
Sec. 9.1. Notice to Presumed Father.
(a) In any action brought under Section 6 or 7 of this Act where
the man signing the petition for an order establishing the existence of
the parent and child relationship by consent or the man alleged to be
the father in a complaint is different from a man who is presumed to be
father of the child under Section 5, a notice shall be served on the
presumed father in the same manner as summonses are served in other
civil proceedings or, in lieu of personal service, service may be made
as follows:
(1) The person requesting notice shall pay to the Clerk of the
Court a mailing fee of $1.50 and furnish to the Clerk an original
and one copy of a notice together with an affidavit setting forth
the presumed father's last known address. The original notice shall
be retained by the Clerk.
(2) The Clerk shall promptly mail to the presumed father, at
the address appearing in the affidavit, the copy of the notice,
certified mail, return receipt requested. The envelope and return
receipt shall bear the return address of the Clerk. The receipt for
certified mail shall state the name and address of the addressee,
and the date of mailing, and shall be attached to the original
notice.
(3) The return receipt, when returned to the Clerk, shall be
attached to the original notice, and shall constitute proof of
service.
(4) The Clerk shall note the fact of service in a permanent
record.
(b) The notice shall read as follows:
IN THE MATTER OF NOTICE TO .......... PRESUMED FATHER.
You have been identified as the presumed father of ......... born on
.........
The mother of the child is .........
An action is being brought to establish the parent and child
relationship between the named child and a man named by the mother,
.........
Under the law, you are presumed to be the father if (1) you and the
child's mother are or have been married to each other, and the child was
born or conceived during the marriage; or if (2) upon the child's birth,
you and the child's mother married each other and you were named, with
your consent, as the child's father on the child's birth certificate.
As the presumed father, you have certain legal rights with respect
to the named child, including the right to notice of the filing of
proceedings instituted for the establishment of parentage of said child
and if named as the father in a petition to establish parentage, the
right to submit, along with the mother and child, to deoxyribonucleic
acid (DNA) tests to determine inherited characteristics. If you wish to
retain your rights with respect to said child, you must file with the
Clerk of this Circuit Court of ......... County, Illinois whose address
is ........, Illinois, within 30 days after the date of receipt of this
notice, a declaration of parentage stating that you are, in fact, the
father of said child and that you intend to retain your legal rights
with respect to said child, or request to be notified of any further
proceedings with respect to the parentage of said child.
If you do not file such declaration of parentage, or a request for
notice, then whatever legal rights you have with respect to the named
child, including the right to notice of any future proceedings for the
establishment of parentage of the child, may be terminated without any
further notice to you. When your legal rights with respect to the named
child are so terminated, you will not be entitled to notice of any
future proceedings.
(c) The notice to presumed fathers provided for in this Section in
any action brought by a public agency shall be prepared and mailed by
such public agency and the mailing fee to the Clerk shall be waived.
(Source: P.A. 90-23, eff. 1-1-98.)
Good luck to you.
IAAL
