Illinois Appellate Court Holds that a Non-Biological Father of a Child Must File Within 2 Years of Having Serious Doubts that He Is Not the Father in a Dissolution Proceeding

 father-kissing-son-5869544A lot of clients often tell us that they want to terminate child support because they have obtained a DNA test, or want to request a DNA test from the Judge to “prove” that they are not the father.  It seems logical to assume that one can just walk into a courtroom waiving the DNA test around and that will automatically get a Judge to declare you not to be the father and terminate your child support.

However, in a recent case, In re Marriage of Ostrander, 2015 IL App 3d. 130755 (3rd Dist. 2015), the Court held that an action to declare the non-existence of the parent and child relationship must be brought no later than 2 years after the father obtains knowledge of relevant facts.  In Ostander, the husband in a dissolution of marriage proceeding and before a Judgment for Dissolution of Marriage was entered, asked for a finding of non-paternity based on a DNA test result that he was not the biological father.  The father argued that he had met the statutory limitations because he only recently found out with the DNA test that he was not the father.  However, the father was told by the mother that he was not the father shortly after the child’s birth, the parties discussed whether to abort the child, and both came to an agreement that they would keep the baby.  In fact, the father even named the child.

 

As a result, the father could not years later in a divorce proceeding and after a DNA test claim that the child is not his and should not have to pay child support.  This case is important because it is imperative that fathers are informed that they should immediately file an action for non-paternity when there is serious doubt in their mind that the child is not theirs, even if there is no DNA test to prove it yet.  If you wait too long, it may be too late.

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