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Vacating an Executed Voluntary Acknowledgment of Paternity

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Categorized as Divorce Litigation

When a child is born into your family, it can be the happiest day of your life.  Staring into this new baby’s eyes, holding them for the first time – it’s totally natural to get swept up in the moment and sign paperwork before you have all the information.  One form says to the state, to the world, to the other parent, and to the baby, “I consent to recognizing I am this baby’s biological parent” – a Voluntary Acknowledgment of Parentage (“VAP”).

Once that form is signed, there are limited options for taking that commitment back.  If you learn after signing a VAP that the baby is not, in fact, your biological child, you have two options:

  1. saying nothing and stepping up to the responsibility you assumed without all of the information; or
  2. bringing an action to vacate the VAP and sever the bonds of legal parentage you formerly consented to.

Presuming Parentage in Illinois

There are a few ways the Illinois law presumes the parentage of a child (see further in 750 ILCS 46/204(b)):

  1. if you are currently married to the parent giving birth to the baby, you are presumed to be that child’s parent.  
  2. If a baby is born pre-marriage, and you are later married, and the non-birth-giving parent lists you as a parent on the baby’s birth certificate, parentage is also presumed; and,
  3. If you are unmarried, but sign a VAP, the Court will presume you are the parent of the child.

Once the presumption of parentage has occurred in one of those ways, that’s not the end of the road.  A presumption is just that – a starting position that you can rebut.

Rebutting the Presumption of Parentage

The Illinois Parentage Act provides a few methods of rebutting the presumption that you are the baby’s legal parent.  

If you are starting to suspect – or maybe, always have suspected – that the baby is not your biological child, Section 401 of the Illinois Parentage Act provides the court with the authority to require the parent(s) to submit the child to DNA testing, as follows:

“As soon as practicable, a court…shall order or direct the mother, child, and alleged father to submit to deoxyribonucleic acid (DNA) testing to determine inherited characteristics.” 750 ILCS 46/401.

Of course, as with everything in family law, if you reach an agreement with the other parent to proceed without court intervention to have the child’s DNA tested, you can always go ahead and do it without asking the Court to order it.  Once the DNA test results are in, you can then know for sure whether the child is your biological child.

If you find out the baby is not your biological child, and you do not wish to continue acting as a parent to the child, the best course of action is to hire an attorney to bring a Petition to Declare the Non-Existence of the Parent-Child Relationship.  You don’t have all the time in the world to start that process.  The law provides that you have two years to bring an action to declare the non-existence of parentage after you knew or should have known you were not the parent.  The Court will review the evidence against parentage, and make a decision as to whether or not to grant your request.  Usually, DNA testing is sufficient to establish that you are not the child’s parent.

There is also another method of throwing out a Voluntary Acknowledgment of Parentage, called a “recission.”

Recission of the Voluntary Acknowledgement of Parentage

If you find out fast enough that the child in question is not your child, you can also rescind your former VAP without court intervention directly.  This is effectively an “UNDO” button on the VAP.

If you do so within sixty (60) days after the VAP was received by the Illinois Department of Health and Family Services (IDHFS), you are likely to be able to rescind the VAP without court or attorney intervention.  However, if you delay past that 60-day window and the request to rescind the VAP is received after that point, you are unlikely to be granted a recission and will need to proceed through an adjudicative process as outlined above.  

Hiring a Family Law Attorney

Hiring a family law attorney to represent you in this situation can be the best way to proceed because there are important deadlines that must be adhered to if you wish to vacate or invalidate a VAP. A skilled family law attorney will be able to assist you not only in determining whether you are a biological parent of a child, but also help you gain equal parenting rights to the other parent for the child if that child is your biological child.  It is always a good idea to seek legal counsel if you are going to be proceeding with a court action over paternity or any other child custody-related matter.

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