LawPulse

Among other things, a bill reworking the Parentage Act allows courts to refuse DNA testing that could deprive kids of their only known parent.

In addition to the family-law overhaul embodied in SB 57, the General Assembly also passed and sent to the governor HB 1531, a rewrite of the Parentage Act of 1984. The new Parentage Act of 2015 brings Illinois law in line with cultural and family-dynamic changes over the last 30 year. In particular, the language of the current Act is not gender-neutral and may be unconstitutional now that Illinois recognizes same-sex marriage. As with SB 57, the governor had not acted on the bill at presstime.

Gender neutrality

According to Oak Brook family law attorney Margaret Bennett, the Parentage Act of 2015 is a "two parent" statute that extends equal rights and responsibilities to both parents, regardless of gender. It also guarantees the right of every child to the physical, mental, emotional, and financial support of his or her parents. Making the statute gender-neutral fulfils the requirements of the Equal Protection Clause of the Illinois Constitution, Bennett says.

The Act was drafted by a large committee, she says. It included the legislature-appointed Illinois Family Law Study Committee and representatives of the ISBA Family Law Section Council, the Illinois Department of Healthcare and Family Services ("DHFS"), and the Illinois Attorney General's Office.

Bennett notes that the participation of DHFS was important because the new law must comply with federal mandates. Illinois receives funds from various federal programs such as Temporary Assistance for Needy Families and Title IV-D, which help with establishing parentage, determining child support, and collecting and enforcing child support orders. Keeping DHFS in the loop ensures compliance, she says.

Presumption of parentage

Article 1, section 102 of the Act would establish its goals and public policy. In particular, it states that the parent-child relationship "extends equally to every child and to his or her parent or to each of his or her 2 parents, regardless of the legal relationship of the parents and regardless of whether the parent is a minor." Article 2 of the Act establishes that every child has equal rights regardless of the legal relationship of the parents. It also defines how the parent-child relationship is established, both for a child and a woman and a child and a man.

The Act slightly modifies the current presumptions of parentage. Whereas the current law provides two rebuttable presumptions and two conclusive presumptions (e.g., where an acknowledgement of parentage has been signed), the new Act sets out four rebuttable presumptions and addresses voluntary acknowledgments in Article 3.

First, a person is presumed to be a child's parent if the child is born while the person and the child's mother are married or in a civil union or substantially similar legal relationship. Second, a person is a presumptive parent if a child is born within 300 days after the termination of a marriage, civil union, or substantially similar legal relationship between the person and the child's mother. Third, a person is presumed to be a child's parent if the child was born during or within 300 days after the termination of an invalid marriage, civil union, or substantially similar legal relationship, but the parties must have entered into the relationship in apparent compliance with the law.

Finally, a person is a presumptive parent if the person enters into a marriage, civil union, or substantially similar legal relationship with the child's mother after its birth and the person is listed as a parent on the child's birth certificate. If two conflicting presumptions arise, the Act provides that the one favored by policy and logic - especially promoting the child's best interests - controls.

Empowering courts to disallow DNA testing

Another interesting change, says Bennett, is that although the Act has specific procedures regarding the use of genetic testing to determine parentage, § 610 gives courts the ability to deny motions for DNA testing. A court may do so if it determines that the conduct of the presumed parent estops that party from denying parentage and that it would be inequitable to disprove the parent-child relationship.

This provision is designed to prevent situations where disproving the relationship would have the effect of "literally ripping a child away from his or her only known parent," explains Bennett. She notes that a hospital that conducted post-birth genetic testing on children and their parents for security purposes discovered that in a number of cases the mother's husband was not the biological father. When a biological father then makes himself known many years later, the best interest of the child may be threatened.

The new Act sets forth 10 factors for deciding whether to allow genetic testing. They include the length of time between the birth of the child and when the presumed parent is given notice that he or she may not be the child's biological parent; the length of time that the presumed parent has acted as the child's parent; the age of the child; the nature of the relationship between the child and the presumed parent and the child and the alleged parent; and the harm that may result to the child if the presumed parentage is disproved.