Most fathers seem to get caught up in the emotions of becoming a father, and end up signing a Voluntary Acknowledgment of Paternity (“VAP”) without a DNA test. The result of signing said document means that you are automatically the legal father, regardless of whether you are the legal father. If you find out within 60 days that you are not the father, you can seek to vacate the VAP. After 60 days, however, it becomes tricky.
The Parentage Act of 2015 provides for the declaration of the non-existence of a pare-child relationship if you find out via a DNA test that you are not the father, and if you brought an action to vacate the finding of paternity within 2 years of the date you knew or should’ve known. However, the Supreme Court of Illinois in People ex rel. Dept. of Public Aid v. Smith 818 N.E.2d 1204 (2nd Dist. 2004) reversed the trial court’s determination that a signed VAP constituted a “finding of paternity” under the Parentage Act. As such, a DNA on its own is insufficient to vacate a VAP.
If you find out that you are not the father, and file a motion to vacate the VAP within 2 years from the time you knew or should’ve known that you were not the father, you will still have to prove that the other party fraudulently caused you to believe that you were the father, that there was a mutual mistake of fact. In either case, you would have to prove that the other party knew that you were not the father and took active steps to make you sign the VAP under a fraudulent belief, or had no clue and found out at the same time you did that you were not the father.
Judges are not inclined to vacate VAPs especially after a long period of time since the child’s birth. As a result, we always recommend that you get a DNA test before signing a VAP. If you have already signed one and have doubts, talk to an attorney as soon as possible to preserve your filing date and not blow through the two-year statute of limitations.