Does it Matter if the Parents are Married?
By Gary L. Schlesinger
The Docket
A Publication of the Lake County Bar Association
June 1998 Vol. V, No. 6
SPECIAL EDITION: FAMILY LAW
The parent and child relationship, including support obligations, extends equally to every child and to the every parent, regardless of the marital status of the parents." 750 ILCS 45/3. Therefore, the answer to this topic is, "No". Thank you for your attention.
A child born or conceived during a marriage is presumed to be the child of the husband. A child born before a marriage to a couple who later marry and the father is named, with his written consent, on the birth certificate, is presumed to be a child of the father. A man is presumed to be the father if he and the mother have signed an acknowledgment of paternity as required by the rules of the Illinois Department of Public Aid. A man is presumed to be the father if he and the mother have signed an acknowledgment pursuant to the Vital Records Act. 750 ILCS 45/5.
The way to establish paternity if the parents are not married at conception or birth and they consent to the establishment of paternity is to do it administratively or judicially. 750 ILCS 45/6. Administratively is easier. 305 ILCS 5/20-17.7 authorizes the Illinois Department of Public Aid to enact rules for the administrative determination of paternity. The forms can be obtained from the County Clerk’s Office. They are filled out by the couple at the hospital at the time of the birth and forwarded to the Clerk of Court. In Lake County, the clerk presents the forms to Judge Martin who signs an order establishing that a parent and child relationship exists. If the forms that the couple filled out do not contain a support amount, the Clerk sets a court date on a Friday in C-402 and sends notice to the couple. Support is set at the court date.
If the parents are unmarried at conception and birth and later marry, they can submit affidavits to the Illinois Department of Public Health to establish paternity and get a new birth certificate for the child naming the father. This procedure is authorized by the Vital Records Act, 410 ILCS 535/12. The forms can also be obtained from the County Clerk’s Office.
The judicial way is to file a lawsuit. The purpose of this article is NOT to instruct you how to do this in great detail. It is all in Chapter 39 of Genesis….no, wait, that is another story. This story is in 750 ILCS 45/7 through 45/19. Be aware that one accused who wishes a judicial determination that he is not the father has only 2 years from the birth to file a suit seeking a declaration of non paternity. How do you prove the negative? It’s all there in 750 ILCS 45/7(b)(1)! The Court Clerk has a pro se packet on how to do this. It makes great reading. Note especially the child support work sheet.
Assume that an unmarried couple does have a child and that the dad is the dad. Does the child have any different rights than if the parents were divorced? Does either parent have any difference rights or responsibilities than if the parents were divorced? The answer is yes and thank you very much for your attention.
The rights and responsibilities of the parents of a child of divorce are in the 500 and 600 series of the IMDMA. The rights and responsibilities of unmarried parents are in the Parentage Act. One difference is that the Parentage Act provides for a jury trial, 45/13. Another is that the mother gets the State’s Attorney to represent her for free and the alleged father gets the Public Defender for free for matters involving the establishment of paternity and support, but not for custody, visitation, property or other matters, 45/18. Some inquiring minds want to know if this is another Special and Limited Appearance other than the one mentioned in the Code of Civil Procedure. 735 ILCS 5/2-301. The State’s Attorney insists it is. Judge Martin is not so sure. Stay tuned on Friday mornings in room 402 for the answer.
The Court in a Parentage case may order support prior to the filing of the action. 750 ILCS 45/14(b). "The court shall, in any event and regardless of the amount of the non-custodial parent’s net income, in its judgment, order the non-custodial parent to pay child support to the custodial parent in a minimum amount of not less that $10.00 per month." Try either of these in an IMDMA case. Try a Count for denial of equal protection and get to meet Assistant Attorneys General from Chicago.
In a Parentage case, custody is to be determined in accord with the standards of the IMDMA. The Court can also determine guardianship, 45/14. That involves a different bundle of legal rights and responsibilities than custody. "…The custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training…" 750 ILCS 5/608(a). "The guardian of the person shall have the custody, nurture and tuition and shall provide education of the ward and of his children." 755 ILCS 5/11-13(a). There are other differences. Not all of the judges agree with me on this. The IMDMA says nothing about guardianship. It only talks about custody. The court in both cases can determine visitation privileges. In a guardianship, visitation can be ordered with a person who provides money to the ward regardless of relationship.
Support is determined in both cases pursuant to Section 505 and 505.2 of the IMDMA. 45/14. The former recites the statutory guidelines on percentages. The latter is healthcare insurance. What about day care? There is one appellate court opinion dealing with day care. (IRMO Serna, 172 Ill.App.3d 1051, 527 N.E.2d 627, 123 Ill.Dec. 164 (4th Dist. 1988) The Appellate Court held that the trial court did not abuse its discretion in dividing day care costs evenly between the parties in addition to ordering the husband to pay statutory child support. There is nothing in either statute about it. The case deals with a divorce. The judges generally feel that day care is a necessity for both parents to be employed and is ordered in both cases in addition to guideline support. If, as it pertains to the day care contribution plus the child support, the total the non-custodian pays to the custodian exceed the 505 guidelines, put findings in you order. 505(2).
The next issue is college education expense under 513. The Second District held Section 513 applies to illegitimate children. Rawles v. Harman, 172 Ill.App.3d 931, 527 N.E. 680, 123 Ill.Dec.217 (2d Dist. 1988).
The last issue is removal. Does 609(b) apply to a Parentage case? These is a Second District case on this topic. In re the Parentage of R.M.F., 275 Ill.App.3d 43, 655 N.E.2d 1137, 211 Ill.Sec. 754 (2nd Dist. 1995). The mother petitioned to remove the child from Genoa, Illinois to Arizona and also petitioned for a declaratory judgment that the removal statues does not apply to a Parentage case. (Can you picture that initial interview?) The father objected to the removal. The trial court granted the removal and found that 609 did apply to a Parentage case.
The father appealed the removal decision. The mother appealed the application decision. The Appellate Court discussed the Eckert factors and the evidence and decided "After a thorough review of the record, we are unable to conclude that the trial court’s decision granting the petition for removal was against the manifest weight of the evidence. 655 N.E.2d at 1141. After reaching that decision, the Court then decided that 609 is not incorporated into the Parentage Act and that the mother did not have to file a petition to remove.
Then the appellate Court discussed 750 45/16. This Section permits the court "to modify an order for support, custody or visitation included in a judgment entered under this Act. Any custody or visitation judgment modification shall be in accordance with the relevant factors specified in the IMDMA". The Marriage Act provides that, in cases arising two years after the entry of an order setting custody, a party may petition the court for a modification of the custody or visitation 750 ILCS 5/610(a). The moving party bears the burden of showing that there has been a change in the circumstances of the child or custodian and that modification would be in the best interests of the child. (citation omitted). In a case where the custodial parent is leaving the State with the minor child and the parties have never been married, such facts would be sufficient to demonstrate a change in the circumstances in satisfaction of the first prong of the statute. The court would then be required to proceed to examine the second prong of the statue. 655 N.E.2d at 1142.
In determining what is in the child’s best interests, the court must utilize the 602 factors and also consider the motives of the parties, their ability to foster a relationship with the child, etc. Basically, the Eckert factors. "Thus, the minor child would be afforded the same procedural rights as a legitimate child. The only difference would be the route traveled to access those rights." 655 N.E.2d 1143.
What if she wanted to move in the first two years? Can one never seek to modify visitation within the first two years? Does this apply to divorce as well as Parentage? I can hardly wait to apply this case to defending a visitation modification case within two years of the prior order.
Gary L. Schlesinger is a family law practitioner with offices in Libertyville.
Gary L. Schlesinger
Suite 300
1512 Artaius Parkway
P.O. Box 6229
Libertyville, Illinois 60048
Phone: (847) 680-4970
Fax: (847) 680-5459
E-mail: glschles@aol.com
