Should all biological parents have a duty to support their offspring? Are there exceptions where a biological parent should not have to pay child support? Do the rights’ of a survivor of rape outweigh the rights’ of a child born to that rape? This article considers the results of a young boy who was statutorily raped and is now obligated to pay both current and retroactive child support for the child born of the statutory rape. This article also reviews some other unique cases and laws that address a party’s duty to pay child support.
In Arizona, approximately ten years ago, when Nick Olivas (“Olivas”) was fourteen years old, he had a sexual relationship with a twenty-year-old woman (“Woman”).1 Under Arizona law, this sexual relationship between the Woman and Olivas constituted statutory rape.2 Unbeknownst to Olivas, the sexual intercourse resulted in the Woman’s pregnancy. Thereafter, Olivas’ relationship with the Woman did not continue, and the two parties each went their own way. Olivas continued on with his life by graduating from high school, attending college, and eventually becoming a medical assistant. It was not until approximately two years ago, when Olivas was twenty-two, that he learned that he was the father of a six year old girl. He learned about his child when he was served with legal documents related to child support.3
When asked about the situation, Olivas stated, "It was a shock . . . I was living my life and enjoying being young. To find out you have a 6-year-old? It's unexplainable. It freaked me out."4 Olivas reported to the Arizona Republic that when he received the legal documents he panicked, ignored the legal document, and never submitted to the paternity test. Now, at age twenty-four, Olivas faces a substantial child support arrearage dating back to the date of birth for the child, plus interest at a rate of ten percent per annum. According to the State of Arizona, Olivas owes approximately $15,000 as and for his child support arrearage, plus additional sums for birthing expenses.5 The State of Arizona has seized money from Olivas’ bank accounts, and his wages are being garnished in the amount of $380.00 per month.6
The child support case against Olivas was initiated when the mother of their child applied for public assistance.7 Under Arizona law, a parent seeking public assistance under the state’s welfare program often must first seek child support from the other parent. In such cases, the Child Support Services division of the Arizona Department of Economic Security will assist the parent seeking support in the legal proceeding for child support.8 The State of Illinois has a similar requirement and offers similar services for establishing and enforcing support obligations.9
PARENTAGE AND THE DUTY TO PAY SUPPORT IN ILLINOIS. Statutory provisions regarding the duty to pay support for children born out of wedlock have existed in Illinois for over 125 years.10 It is a long held principle of Illinois law that a father’s legal duty to pay support for a child born outside of marriage is purely statutory in nature and may be enforced only in the manner prescribed by the relevant statute. 11 A primary purpose of the statutory duty to provide support to a child born out of the marriage is to prevent the child from being dependent on government subsidies.12 However, the duty to pay child support for a child born outside of marriage cannot commence until paternity is established in a legal proceeding.13
Under previous Illinois parentage law, once paternity was established, a father had the duty to provide support to the child to the same extent as a father of a child born to a marriage. However, even though a finding of paternity established a duty of support, the father of the child born out of marriage had no right to custody, except if the father initiated an adoption proceeding.14 Wallace v. Wallace 60 Ill.App.2d 300, 302-303 (Ill.App.1965). In Wallace v. Wallace, the court summarized the above statutory provisions as follows, “The father has the duties to his illegitimate child equal to the duties of a father of a legitimate child, but he has none of the rights enjoyed by the father of a child born in wedlock.”15 This is no longer the standard under current law.16
Being a minor child does not preclude a party from being responsible for child support. The Illinois Parentage Act of 1984 provides a child's mother or a person found to be the father of a child is not relieved of support obligations to the child because he or she is a minor.17 Similarly, if a marriage is voidable because the husband is a minor, the obligation as a husband may be relieved but the obligations as a father would still be enforceable. 18
Once the obligation to pay support has been determined, the court must determine (1) the amount of support that should be ordered going forward, if any, and (2) the potential application of retroactive support. In determining child support going forward, the court is to apply the statutory guidelines set forth in Illinois Marriage and Dissolution of Marriage Act. The court may find that a deviation from the guidelines is appropriate after considering the best interest of the child in light of the evidence, including, but not limited to, one or more of the following relevant factors:
(a) the financial resources and needs of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical, mental, and emotional needs of the child;
(d-5) the educational needs of the child; and
(e) the financial resources and needs of the non-custodial parent.19
The deviation provision of the child support statute is of particular relevance in dealing with a parent that is still a minor at the time the child support is set. The court could deviate from statutory guidelines on the basis that the obligor is still in school and does not have the financial resources to contribute the full amount of child support pursuant to statutory guidelines. It would be safe to assume that in some instances the obligor may not have any income. If the net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in that particular case.20 In such instances, the court has the authority to impute income to the obligor.21
The next issue for the court to resolve is the application of retroactive support. The Illinois Parentage Act of 1984 provides that the court may order child support for a period prior to the commencement of the child support, including retroactive support back to the date of the child’s birth plus reasonable expenses incurred by either parent or the Department of Healthcare and Family Services related to the mother's pregnancy and the delivery of the child.22 Illinois parentage statutes prior to the Illinois Parentage Act of 1984 did not expressly provide for allowing retroactive support payments.23 In determining the extent to which payments shall be made for any prior period, the court shall consider all relevant facts, including the factors for determining the amount of support specified in the Illinois Marriage and Dissolution of Marriage Act and other equitable factors including, but not limited to:
(1) The father's prior knowledge of the fact and circumstances of the child's birth.
(2) The father's prior willingness or refusal to help raise or support the child.
(3) The extent to which the mother or the public agency bringing the action previously informed the father of the child's needs or attempted to seek or require his help in raising or supporting the child.
(4) The reasons the mother or the public agency did not file the action earlier.
(5) The extent to which the father would be prejudiced by the delay in bringing the action.24
For purposes of determining the amount of child support to be paid for any period before the date the order for current child support is entered, there is a rebuttable presumption that the father's net income for the prior period was the same as his net income at the time the order for current child support is entered.25 In arguing against retroactive support, the obligor could once again argue that the he did not have the financial resources to pay child support for any period of time during the obligor’s minority.
Other jurisdictions have similar statutory guidelines that provide a basis for the court to deviate from the statutory guidelines. For example, the Arizona child support statute provides that the courts are to follow the statutory guidelines set by the Arizona Supreme Court, unless there is a basis to deviate when considering several factors, including, but not limited to, the financial resources and needs of the non-custodial parent.26
HOW THE LAW MAY REQUIRE A VICTIM OF STATUTORY RAPE TO PAY CHILD SUPPORT. Many people have expressed outrage over the fact that a victim of statutory rape can be charged with the duty to pay child support. First and foremost, the victim is unable to consent to the sexual activity that resulted in the birth of the child. Second, the victim is presumably of school age and unable to earn adequate income to support the minor child. However, the general consensus of the courts that have heard the issue at hand has been that the victim of statutory rape owes a duty of support to the minor child, regardless of his or her inability to legally consent to the sexual intercourse that resulted in conception.
In Arizona there is an exception to the rule that a non-custodial parent has an obligation to pay child support when there is guilty finding for sexual conduct with a minor child, regardless of the noncustodial parent’s age.27
Under Arizona law A.R.S. 13-405, “a person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age,” and “sexual conduct with a minor who is under fifteen years of age is a class 2 felony.”28
Pursuant to A.R.S. 25-501, “the court may determine that a parent is not obligated to contribute to the support of the parent's minor child if maternity or paternity is the result of the parent's sexual contact with a person who, as a result of that contact, has been found guilty of sexual conduct with a minor under section 13-1405 or sexual assault under section 13-1406.” 29
A.R.S. 13-107 provides that class 2 felonies must be commenced within seven years after actual discovery by the state or political subdivision having jurisdiction of the offense or discovery by the state or the political subdivision that should have occurred with the exercise of reasonable diligence, whichever first occurs.30
According to the Arizona Republic, Olivas did not realize that pursuing criminal charges was even a consideration, and, therefore, no charges were brought against the mother and the statute of limitations has passed. Under Arizona law, a minor cannot consent to sexual relations. However, unless there is a guilty finding with respect to sexual assault of a minor, the victim of sexual abuse is obligated to provide support for the minor child that was born as a result of the sexual abuse.31
Even though Olivas did not have the capacity to consent to the sexual intercourse that resulted in the birth of his child, he is now obligated to pay child support. Olivas stated that he wants to be involved in the child’s life, and he is willing to pay child support going forward. However, Olivas noted a distinction between retroactive support and support going forward. He commented on the distinction between his child support obligation for retroactive support and support going forward by stating that, "Anything I do as an adult, I should be responsible for. But as a teenager? I don't think so."32
In State Ex Rel. Hermesmann v. Seyer, the Kansas Supreme Court ruled that the victim of sexual abuse can be ordered to pay child support, regardless of his or her age. 33 Colleen Hermesmann routinely provided care for Shane Seyer as a baby sitter or day care provider during 1987 and 1988. The two began a sexual relationship at a time when Colleen was 16 years old and Shane was only 12. The relationship continued over a period of several months and the parties engaged in sexual intercourse on an average of a couple of times a week. As a result, a daughter, Melanie, was born to Colleen on May 30, 1989. At the time of the conception of the child, Shane was 13 years old and Colleen was 17. Colleen applied for and received financial assistance through the Aid to Families with Dependent Children program from the Kansas Department of Social and Rehabilitation Services (“SRS”). Thereafter, SRS filed a petition with the court seeking that Shane reimburse SRS for all assistance expended by SRS on behalf of the minor child. In its ruling, the Court stated:
This State's interest in requiring minor parents to support their children overrides the State's competing interest in protecting juveniles from improvident acts, even when such acts may include criminal activity on the part of the other parent. Considering the three persons directly involved, Shane, Colleen, and Melanie, the interests of Melanie are superior, as a matter of public policy, to those of either or both of her parents. This minor child, the only truly innocent party, is entitled to support from both her parents regardless of their ages.34
The Hermesmann Court noted that this was a case of first impression for Kansas, but referred to several other jurisdictions to support its ruling that support should be ordered in such circumstances, including Wisconsin, Colorado, Illinois, New York, and Massachusetts.
In County of San Luis Obispo, v. Nathaniel J., the Second District California Court of Appeals reviewed a case in which a victim of statutory rape was ordered to pay child support.35
On January 20, 1995, Ricci Jones gave birth to a daughter. The child's father, Nathaniel J., was 15 years old when Jones conceived the child, and Jones was 34 years old at the time. Jones was convicted of unlawful intercourse with a minor child. The trial court ruled that paternity was established and reserved an order of child support. The court stated that presumably when Nathaniel J. reaches majority or completes his schooling, the court will reassess his ability to provide support. The trial court’s ruling was affirmed on appeal. In its ruling, the Nathaniel J. Court cited cases from several other states, including a Minnesota appellate court decision in which the Minnesota Court stated that the “child's interests in receiving support supersedes economic consequences minor father suffers from statutory rape.”36
In Illinois, the Third District dealt with a case involving a victim of statutory rape who was charged with a child support obligation. In re J.S.37 On March 23, 1987, the Illinois Attorney General's office filed a petition on behalf of the petitioner, Tami Stone, alleging that the respondent, David Williams, was the father of Stone's minor son, J.S. Following a hearing, the trial court entered a judgment finding that the respondent was J.S.'s father. On March 16, 1989, a hearing was held regarding Williams obligation to pay support to Stone as and for support of the minor child. The trial court ordered Williams to pay weekly child support and medical expenses for the minor child. Williams appealed and argued that that he should not be required to pay child support because he was fifteen years old when the child was conceived. He argued that Illinois public policy protects minors from the consequences of their improvident conduct. The appellate court disagreed and held that Williams has a duty to support his child, regardless of Williams’ age at the time of conception. The court stated,
We note that contrary to the respondent's position, Illinois public policy has never offered blanket protection to reckless minors. (See Dawson v. Hoffmann (2nd Dist., 1963), 43 Ill.App.2d 17, 192 N.E.2d 695 (when a minor engages in an adult activity he will be held to the same standard as all others who participate in that activity); Kennedy v. Kiss (1st Dist., 1980), 89 Ill.App.3d 890, 45 Ill.Dec. 273, 412 N.E.2d 624 (a minor is liable for necessities purchased by the minor under his own credit); Ill.Rev.Stat.1987, ch. 37, par. 805-4(6)(a) (a 15-year-old minor can be tried as an adult for the crimes of first degree murder and armed robbery with a firearm).) At the same time, Illinois public policy has recognized the blanket right of every child to the physical, mental, emotional, and monetary support of his or her parents. (Ill.Rev.Stat.1987, ch. 40, par. 2501.1.) The public has an interest in protecting children from becoming wards of the state. In re Petition of Sullivan (2nd Dist., 1985), 134 Ill.App.3d 455, 89 Ill.Dec. 540, 480 N.E.2d 1283.
In the instant case, we find that the public policy mandating parental support of children overrides any policy of protecting a minor from improvident acts. We therefore hold that the trial court properly found that the respondent was financially responsible for his child. 38
THE DUTY TO PAY SUPPORT IN OTHER UNIQUE SITUATIONS
- Artificial Insemination
The Illinois Parentage Act (not to be confused with the Illiniois Parentage Act of 1984) provides statutory provisions that allows semen to be donated for the purposes of artificial insemination. Section 3(a) of the Illinois Parentage Act provides, in part, that:
If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband shall be treated in law as if he were the natural father of a child thereby conceived.
Section 3(b) of the Illinois Parentage Act further provides, in part, that:
It further provides that the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife shall be treated in law as if he were not the natural father of a child thereby conceived.39
Section 3(b) specifically protects sperm donors from claims of paterninty and liability for child support.40 The result of the Illinois Parentage Act is that a party can be the biological parent of a child but have no duty to support the child. However, it is is imperative to comply with the specific language of the statute.
In 2009, William Marotta, a resident of Kansas, donated sperm to a lesbian couple wishing to conceive a child. Mr. Marotta did not receive any compensation for his donation and the parties signed agreeements that Mr. Marotta would have no financial responsibility for the child. Kansas law, similar to Illinois, requires a physician to perform the insemintation. Unbenkonwst to Mr. Marotta, the lesbian couple did not use a physican. Now, years later, the Kansas District Court has found Mr. Marotta liable to pay child support for the child produced as a result of his donated sperm.41
In 1991, the Illinois Second District dealt with a case with a father who alleged that he was tricked into conceiving a child and constitutionally should not be obligated to pay child support. The father alleged that the mother represented to the father that she was taking a drug with a leading side effect that caused the inability to become pregnant. The father further alleged that he made known to the mother that he did not wish to create a child. Finally, the father alleged that the mother told the father she would not ask the father to support the child. The Court found a child must not be deprived of support because of one parent’s misapprehension of the likelihood of conception.42
- Sexual Abuse in Illinois
Section 6.5 of the Illinois Parentage Act of 1984 provides statutory provisions regarding the prohibition of custody or visitation to men who father a child through sexual assault or sexual abuse. Section 6.5(c) provides the following regarding support for a child born through sexual assault or sexual abuse by the father:
(c) Notwithstanding any other provision of this Act, nothing in this Section shall be construed to relieve the father described in subsection (a) of any support and maintenance obligations to the child under this Act. The child's mother or guardian may decline support and maintenance obligations from the father.
A strict interpretation of the statutory language of Section 6.5(c) of the Illinois Parentage Act of 1984 indicates that the mother or guardian of a child born by sexual assault or abuse caused by the father allows the mother or guardian to decline support from the father, thus eliminating the father’s duty of support.
Courts across the United States have consistently held that the right of a child to receive support from both parents outweighs any competing interests of either parent regardless of any inequity that may arise for either parent. This overarching principle is based on the fact that the child is the only truly innocent party involved, and that there is strong public policy that parents should support their child instead of placing the financial burden on the state.
1 Alia Beard Rau, “Arizona statutory rape victim forced to pay child support,”Arizona Republic, September 2, 2014.
2 A.R.S. 13-405.
5 David Moye, “Alleged Statutory Rape Victim Ordered To Pay $15,000 In Child Support,” The Huffington Post, September 5, 2014.
8 See https://www.azdes.gov/az_child_support/overview.aspx
9 See https://www.dhs.state.il.us/page.aspx?item=19612
10 People ex rel. Wilmers v. Volksdorf, 112 Ill. 292, (Ill. 1884).
11 Ehorn v. Podraza, 51 Ill.App.3d 816, 817, (Ill.App. 1977).
13 People v. Flieger, 125 Ill.App.3d 604, 607 (Ill.App. 3 Dist.,1984).
14 Wallace v. Wallace, 60 Ill.App.2d 300, 302-303 (Ill.App.1965).
16 750 ILCS 45.
17 750 ILCS 45/3.1.
18 Long v. Long, 15 Ill.App.2d 276, 285 (Ill.App. 2 Dist.1957).
19 750 ILCS 5/505.
21 In re Marriage of Gosney, 394 Ill.App.3d 1073 (3rd Dist. 2009).
22 750 ILCS 45/14.
23 People ex rel. Causley v. Jackson, 171 Ill.App.3d 464, 467-468 (Ill.App. 4 Dist.,1988).
24 750 ILCS 45/14.
26 A.R.S. 25-320.
28 A.R.S. 13-1405.
29 A.R.S. 25-501.
30 A.R.S. 13-107.
33 State Ex Rel. Hermesmann v. Seyer, 252 Kan. 646 (1993).
35 County of San Luis Obispo, v. Nathaniel J., 50 Cal.App.4th 842 (1996)
36 Id. citing Jevning v. Cichos (Minn. Ct. App. 1993) 499 N.W.2d 515, 518
37 In re J.S. 193 Ill.App.3d 563 (3rd Dist. 1990).
39 750 ILCS 40.
40 In re Parentage of M.J., 203 Ill.2d 526, 534 (Ill.,2003).
41 Chandrika Narayan, “Kansas court says sperm donor must pay child support,”CNN, January 24, 2014.
42 Department of Public Aid ex rel. McFarland v. Thompsen, 218 Ill.App.3d 1099, 1103 (Ill.App. 2 Dist.,1991).
Michael R. Hudzik is a graduate of DePaul University College of Law. Michael has past legal experience in family law, criminal law, commercial litigation, real estate transactions, and estate planning. Since joining Sullivan Taylor Gumina, P.C. in 2011, Michael has practiced exclusively in the area of family law.
Anthony E. Vechiola is an Associate Attorney at Sullivan Taylor & Gumina, P.C. and concentrates his practice in the area of family law, including: dissolution of marriage; child custody and visitation disputes; paternity matters; child support; maintenance; property allocation; and orders of protection. Anthony is a graduate of the John Marshall Law School and Benedictine University.