Rebutting the Presumption of Parentage

 Posted on April 19, 2016 in Paternity

As you are probably aware, a parent’s rights regarding his or her child are dependent upon the establishment of the parent-child relationship under the law. In the vast majority of situations, the process is fairly easy. A child born to a married couple is presumed to be the child of both spouses, while unmarried parents can voluntarily acknowledge their parentage by signing a simple form. Sometimes, however, a person presumed by law to be the child’s parent is not really the parent, and when this happens, the individual should be prepared to take action.

A Realistic Example

Assume that you and your wife are in the beginning stages of the divorce process. Your marriage has been effectively over for months, so you moved out and started gathering the information necessary to file for divorce. Each of you begins casually pursuing new romantic interests, which—although not the best idea—is fairly common in divorce situations. Before your divorce is finalized, your wife lets you know that she has gotten pregnant. Assuming that you are not the biological father, now what?

According to Illinois law, you are presumed to be the child’s father by virtue of your marriage. That presumption extends to a child born up to 300 days after the entry of your divorce judgment. Your first step, therefore, should be completing a denial of parentage as soon as the child is born. The denial of paternity, however, is not strong enough on its own to rebut your presumed parentage. A voluntary acknowledgement of paternity must also be completed by the mother and the biological father; otherwise, you will still be the considered the child’s legal father.

Legal Action

If the other parties will not complete a voluntary acknowledgement of paternity, you may need to take more drastic steps to rebut the presumption of your parentage. In doing so, you will need to provide "clear and convincing evidence" that the presumption is not correct example, you may be able to show that you have had in-person contact with your ex-wife around the time that she became pregnant. Alternatively, genetic testing may also show that you are not the biological parent.

It is important to keep in mind that you would not be taking such action out of any type of ill will toward the child. Failing to take action could result in you being responsible for child support and other parental obligations for a child with whom you have no biological or personal relationship.

We Can Help

When you are facing the difficult prospect of rebutting a presumption of parentage, you need to have an experienced Lombard family law attorney on your side. Contact the dedicated team at A. Traub & Associates today for assistance. Call 630-426-0196 to schedule an appointment and get the answers you need to whatever questions you may have.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+V&ActID=2086&ChapterID=0&SeqStart=6100000&SeqEnd=8350000