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Vacating an Executed Voluntary Acknowledgment of Paternity

Categorized as Divorce Litigation

In the excitement of the moment, many fathers have signed Voluntary Acknowledgments of Paternity for a child that is later determined to not be his child.  Case law has established a procedure to vacate a Voluntary Acknowledgment of Paternity (VAP).  In the recent amendments to the Parentage Act, said case law has now been codified into the statute.

Specifically, 750 ILCS 45/6(a)(d)(2014) and 750 ILCS 45/309(2016) provides that after the statutory period of 60 days in which a party can rescind the VAP, a VAP can only be challenged in court on the basis of fraud, duress, or mutual mistake.  In order to invoke this provision, a party must file a Motion to Dismiss pursuant to 2-1401 within 2 years of the signing of the Voluntary Acknowledgment of Paternity.

After 2 years, case law has established that even a showing of due diligence and a meritorious defense (that you are not the father) are not sufficient to vacate a VAP.  Instead, “a litigant must additionally establish that the grounds for relief were fraudulently concealed from him, in order to toll the limitation period.”  Ptasek v. Michaelik, 238 Ill. App. 3d 72, 78 (1st Dist. 1992).  In the alternative, a party could show that he was under legal disability or duress.

In Crowell v. Bilandic, 81 Ill. 2d 422, 428 (1980), the Illinois Supreme Court held that the type of conduct that would be considered fraudulent enough to toll the 2-year requirement consists of affirmative acts or representations designed to prevent discovery of the cause of action or ground for relief.  As such, the father must prove that the mother at some point within 2 years of signing the VAP found out that he was not the father, and actively concealed the fact from him.  If the mother also did not know, then she has not committed fraud.

This law seems unfair to those who do not find out that they are not the father until after 2 years of the signing of the VAP.  The case law has now been codified into the statute and remains the law for the time being, as unfair as it may be to those who are stuck paying child support for children that are not their biological children.

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