Illinois Parentage Disestablishments after A.A. and the 2015 Parentage Act
By Jeffrey A. Parness and David A. Saxe
When birth mothers are married, their husbands are established as fathers under law at birth due to their presumed biological ties. When birth mothers are not married, men claiming biological ties can now be established as fathers under law by signing, together with the birth mothers, voluntary acknowledgments of parentage (VAPs). Such parentage, however, can be disestablished by either rescission or challenge. Presumed fatherhood can be disestablished by rebuttal.
Disestablishment norms recently were altered by the Illinois Supreme Court in the November 2015 A.A. decision1, which involved a GAL’s challenge to a VAP, and by the Illinois Parentage Act of 2015, effective January 1, 2016.2 This article explores the changes and posits further alterations to the 2015 Parentage Act in order to better serve the best interests of Illinois children. Specifically, as with other VAP challengers, GALs should be required under the Act to demonstrate that a child’s best interests would be served by any post 60-day challenge to a VAP.
The A.A. Decisions. In the Appellate Court, the A.A. case was described as follows: In June 2013, the Illinois Department of Children and Family Services (DCFS) petitioned for an adjudication of wardship of A.A. (and three other children, all born to Caitlin).3 A.A. was born in April 2013. Caitlin’s husband signed a denial of paternity and was ruled out as A.A’s biological father, thereby allowing Matthew A. to voluntarily acknowledge parentage (VAP) shortly after A.A.’s birth. Matthew acted in belief that he was the biological father, though he knew he might not be. Caitlin had reason to know that Matthew was not the biological father. When Caitlin informed Cort H. that he likely was A.A.’s father, he denied it and ended their romantic relationship. In August 2013, Cort died.
By November 2013, Matthew “unfortunately” learned he was not A.A’s biological father.4 In February 2014, the parents of Cort sought to intervene in the wardship proceeding because they wished to adopt A.A.5 That same month, the trial court recognized a service plan for Matthew and Caitlin to regain custody of A.A.6 However, Matthew never had a chance to regain custody since the guardian ad litem (GAL) for A.A. successfully challenged the VAP over Matthew’s objection. In May 2014, the trial court vacated the VAP and declared a parent-child relationship between the deceased Cort and A.A. The Appellate Court affirmed. The court commended “Matthew A.’s parental instincts and actions regarding A.A.”7 The court ruled there was no need for an inquiry into the A.A.’s best interests.8 Further, the Appellate Court did not consider expressly the effect of Cort’s denial of responsibility for A.A. when confronted by Caitlin, or the failure of Cort to pursue fatherhood. The Appellate Court noted that “A.A. should be able to receive social security survivor benefits through Cort H.”9 Biology, and perhaps money, reigned supreme. There was no judicial investigation into the VAP challenge limits, which by federal statute after 60 days are fraud, duress, or material mistake of fact.10 There was no inquiry into the possible revival of the statutory marital parentage presumption applicable to Caitlin’s husband since his paternity disestablishment depended upon Matthew’s legal parentage.
The Supreme Court affirmed.11 The court recognized that Matthew had visited A.A. and P.S., a child born to Caitlin and Matthew, who was placed in the same foster home as A.A.12 But it determined the Parentage Act of 1984 allowed a GAL action on behalf of a child to declare the nonexistence of a parent-child relationship due to the lack of biological ties in the VAP parent, without first inquiring into the child’s best interests. The court chiefly relied on its earlier decision in John M., wherein a biological father rebutted a husband’s marital parentage presumption without inquiry into best interests.13 Under the 1984 Parentage Act, parent-child relationships established by a VAP and by a marital parentage presumption were deemed comparable by the Supreme Court.
The 2015 Parentage Act. In A.A., the Supreme Court declared that parentage issues raise “essentially questions of policy . . . more appropriately directed to the legislature than to this court.”14 The Legislature has implemented new family laws via both a new Marriage and Dissolution of Marriage Act (IMDMA) and the Parentage Act of 2015, each effective January 1, 2016.15 Yet these new family laws do not undercut the A.A. precedent.
An earlier proposed IMDMA included significant alterations in parentage establishment norms.16 However, the new IMDMA addresses neither parentage establishment nor disestablishment. The Parentage Act of 2015 alters both parentage establishment and disestablishment norms. As to parentage establishment, the Parentage Act expands those eligible to become presumptive parents, who now arise due to “a marriage, civil union, or substantially similar legal relationship.”
Thus, women can be presumed parents under the new Act. Yet the Act also limits presumptive parents by excluding VAP signors. As to parentage disestablishment, the 2015 Parentage Act no longer combines marital parentage presumption rebuttals and VAP challenges within the same statutory section. One provision recognizes “an action to declare the non-existence of the parent-child relationship may be brought by the child, the birth mother, or a person presumed to be a parent” under the marital parentage presumption statute.17 Another provision allows a VAP “signatory” to rescind the VAP within 60 days of signing, assuming no earlier “judicial or administrative proceeding.”18 After 60 days, VAP challenges must be based on “fraud, duress or material mistake of fact,” and usually must be presented within two years of the effective VAP date.19
Whether in a marital parentage presumption rebuttal or a VAP challenge, the 2015 Parentage Act comparably allows access to genetic testing, but only where there is no estoppel from denying parentage; where there is no inequity in disproving “the parent-child relationship between the child and the presumed, acknowledged or adjudicated parent”; and where the “child’s best interests” will be served.20 Yet these prerequisites to court-ordered genetic testing only apply to initiatives pursued by “a parent, presumed parent, acknowledged parent, adjudicated parent, or alleged parent.”21 Notably, in A.A., the GAL requested genetic testing.
Reforming VAP Parentage Disestablishments. Under the 2015 Parentage Act, GALs seeking court-ordered genetic testing in VAP challenge settings are not required to demonstrate no estoppel, no inequity, and a child’s best interests. Under the Supreme Court’s decision in A.A., any such requirements for GALs must be made by the General Assembly. Legislators should so require GALs, as there should be no court-ordered testing when courts disagree with GALs on estoppel, equity or a child’s best interests. In a comparable setting, when a guardian seeks to dissolve a ward’s marriage, a dissolution proceeding will only be authorized after a “court finds by clear and convincing evidence that the relief sought is in the ward’s best interests.”22 Here, the guardian and the court are guided by detailed statutory “standards for decision making.”23 Illinois legislators should consider whether different and more particular disestablishment standards are needed for VAP challenges than for marital parentage presumption rebuttals. In A.A., the Supreme Court found a marital presumption rebuttal precedent “instructive” before issuing a “consistent” holding in a VAP challenge setting.24 But under both the former and current Parentage Acts, only a VAP “has the full force and effect of a judgment.” Former 750 ILCS 45/5(b) deemed a VAP, but not a marital parentage presumption, “conclusive.” Today, 750 ILCS 45/4.1 deems “administrative determinations of paternity and nonpaternity” per VAPs to “have the full force and effect of judgments.” In addition, 750 ILCS 46/305 says a VAP “is equivalent to an adjudication of parentage of a child” and “has the full force and effect of a judgment.”
Further, only a VAP is significantly guided by federal statutory guidelines due to the receipt by Illinois of federal welfare subsidies with strings attached. The Amicus Curiae Brief of the Illinois Department of Healthcare and Family Services in A.A. urged that routine genetic testing orders, as sanctioned in A.A., would violate the federal Social Security Act (and put Illinois at a risk of losing “crucial federal funding”25) since the Act requires post-60 day VAP challenges to be founded on “fraud, duress, or material mistake of fact.” 26 The import of this requirement remains unclear in Illinois27 and nationwide28 as there is no uniform federally mandated approach. Seemingly, “material mistake” means more than a lack of biological ties in the male signatory, or else the pre and post-60 day norms would be the same, making the requirement silly. Further, the parties responsible for demonstrating the fraud, duress or mistake mandates remain unclear. Are they the signatories only, or do they include others under the Social Security Act who challenge VAPs (assuming other parties have standing under the Act)? Although requiring a non-signatory to establish a signatory’s fraud, duress or mistake seems quite burdensome, not doing so opens the door to VAP challenges regardless of children’s best interests unless, as in Michigan and Alabama, such interests always are considered prior to VAP parentage challenges.29
In distinguishing between marital presumption and VAP parents, Illinois legislators also should consider whether for VAPs, there should be more limited standing to challenge. A GAL is without standing in Utah, for example, where challenges may be brought only by a “signatory” or “support-enforcement agency.”30
Additionally, Illinois legislators should consider whether varying time limits on VAP challenges should be imposed even where there is fraud, duress, or mistake, perhaps with more significant limits applicable to certain challengers, such as male or female signatories or alleged biological fathers. Under the Parentage Act of 2015, all post 60-day VAP challenges must be filed within “2 years after the effective date of the acknowledgment or denial” (i.e., by a husband who denies biological ties). Yet unwed, non-VAP, biological fathers do not have parental status as do VAP signatories, and thus may be accorded less protection, as they often are, for example in adoption proceedings.31
Finally, non-biological VAP fathers (and perhaps someday nonbirth VAP mothers32) increasingly raise, with birth mothers, children born of sex in Illinois and across the country. The Parentage Act of 2015, and the federal Social Security Act, do not require a male VAP signatory to declare expressly a (reasonable) belief in his biological ties to the child, thereby opening the door to both male and female VAP signatories with no biological ties. While the superior parental rights of the biological parents of these children must be respected, there is nonetheless significant room to recognize non-biological VAP childcare under law in order to serve the best interests of children, especially after biological and VAP parents end their romances or after biological parents die, or have their parental rights terminated. VAP norms in Illinois should be amended to allow greater opportunities for judges to protect children, within the limits set by the federal Social Security Act.
Conclusion. In its A.A. decision, the Illinois Supreme Court allowed a GAL to seek an order declaring the nonexistence of a parentchild relationship due to the lack of biological ties in a VAP parent without first inquiring into the child’s best interests. The 2015 Parentage Act, effective January 1, 2016, does not alter this outcome. Like other VAP challengers, GALs should be required under the Act to demonstrate that a child’s best interests would be served by any post 60-day challenge to a VAP.
The legislature also should clarify which parties are responsible for demonstrating fraud, duress, and material mistake of fact in VAP challenge cases; consider more limited standing to challenge VAPs; and explore whether there should be varying time limits to different VAP challenges. Changes can respect, as they must under the 2015 Parentage Act, “the right of every child to the physical, mental, emotional, and financial support of his or her parents,”33 while allowing Illinois judges enhanced opportunities to better protect children.
1. In re A.A., 2015 IL 118605.
2. 750 ILCS 46/101, et seq.
3. In re A.A., 2014 IL App. (5th) 140252 ¶3, 20 N.E.3d 526.
4. Id. at ¶7.
5. Id. at ¶10.
6. Id. at ¶11.
7. Id. at ¶31.
8. Id. at ¶30.
9. Id. at ¶31.
10. 42 U.S.C. 666(a)(5)(D)(iii).
11. In re A.A., 2015 IL 118605 (hereinafter “A.A.” ).
12. Id. at ¶14.
13. Id. at ¶¶ 29-32.
14. Id. at ¶27, citing Hayen v. County of Ogle, 101 Ill. 2d 413 (1984).
15. Public Act 99-90 (IMDMA), chiefly found at 750 ILCS 5/101, et seq., and Public Act 99-85 (Parentage Act), found at 750 ILCS 46/101, et seq.
16. See, e.g., Jeffrey A. Parness, “Federal Constitutional Childcare Interests and Superior Parental Rights in Illinois,” 33 Northern Illinois University Law Review 305, 351-352 (2013).
17. 750 ILCS 46/205(a).
18. 750 ILCS 46/307.
19. 750 ILCS 46/309(a).
20. 750 ILCS 46/610(a).
21. 750 ILCS 46/610(a).
22. 755 ILCS 5/11a-17(a-5).
23. 755 ILCS 5/11a-17(e).
24. In re A.A., 2015 IL 118605 ¶29, citing In re Parentage of John M., 212 Ill. 2d 253 (2004).
25. Brief in Support of Respondent-Appellant Matthew A., dated March 3, 2015, at 24.
26. 42 U.S.C.A. §666(a)(5)(D)(ii).
27. See, e.g., People v. Smith, 212 Ill. 389, 818 N.E.2d 1204, n.1 (2004) (male VAP signatory seeking post-60 day rescission did not raise the issue of fraud) and Jeffrey A. Parness, “No Genetic Ties, No More Fathers: Voluntary Acknowledgment, Rescissions and Other Paternity Disestablishments Under Illinois Law,” 39 The John Marshall Law Review 1295, 1304-1306 (2006) (hereinafter “No Genetic Ties”).
28. “No Genetic Ties,” at 1306-1315 (comparing precedents from Connecticut, Tennessee, New York, Oklahoma and Louisiana).
29. Helton v. Beamon, 497 Mich. 1001 (Mich. 2015) and Alabama Code 26-17-609(b).
30. Utah Code 78B-15-307(1).
31. See Lehr v. Robertson, 463 U.S. 248 (1983) (such unwed fathers only have federal constitutional parent opportunity interests, not federal constitutional parental status).
Professor Emeritus Jeffrey Parness teaches at the Northern Illinois University College of Law. He received his B.A. from Colby College and his J.D. from The University of Chicago. David Saxe is a third year law student at the NIU College of Law.
Dr. Saxe graduated from Illinois Wesleyan University, and has a specialist degree in school psychology from Illinois State University and a doctoral degree in administration and supervision from Loyola University of Chicago.