Paternity: Legal or Biological Father

by | Apr 21, 2020 | Lawyers

While in the eyes of a child, a Dad is a Dad, but in legal situations, there is a distinction between a legal father and a biological father. As a general definition, paternity in the state of Illinois is the legal relationship between a father and a child.

In some cases, a man may assume he is the biological father of a child and is also acting as the legal father. Under some very specific situations, the father may wish to change his paternity status or the disestablish paternity. This act also has an impact on the father’s rights, typically eliminating both parental rights as well as all parental responsibilities.

60 Days from Signing A VAP
In the case of unmarried parents, both the mother and the father may agree to sign a Voluntary Acknowledgement of Paternity (VAP). This is a simple form that states that both the mother and the father accept the paternity. It also allows the father to exercise his father’s rights, including parental rights and responsibilities for the child.

Within 60 days of signing, the father may choose to file a Rescission of Voluntary Acknowledgement of Paternity. This cancels the original acceptance of paternity of the child with the filing of the form to rescind the original VAP. This can be done without the mother’s signature.

After 60 days, the process is more complicated and costly. The unmarried man should immediately contact a family attorney as this involves a petition of the court. In addition, there are only a limited number of reasons the court will agree to the petition. These reasons include being forced to sign under duress, fraud, or if there was a mistake in the facts leading to the signing of the original VAP.

Married but Not the Biological Father
In the case of a married couple, Illinois law recognizes the husband as the presumed father of all children of his wife as long as they are married or in a civil union. Children born during the marriage, or if the marriage was terminated less than 300 days before the child is born, are assumed to be biological children of the father, and paternity is automatically established.

If there is a question of the paternity of the child, genetic testing may be required to prove or disprove paternity. However, even if the husband is not the biological father, he may still be considered the legal father and continue to exercise father’s rights and parental responsibilities.

In cases where the father delays this testing, a judge may deny the claim even if the child is not biologically related through testing. Talking to an attorney is critical in these cases, and it should be done as soon as there is a reason to question paternity.

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