The Illinois Parentage Act of 2015: Gender Equality

For over thirty years, child-related issues of unmarried parents had been governed by the Illinois Parentage Act of 1984.  However, on July 21, 2015, Governor Bruce Rauner signed the Parentage Act of 2015 (the “Act”) into law, which revamped the old version by updating outdated terminology and concepts.  These changes mirror the changes in families and culture over the course of the last three decades.

 

As a brief summary of some of these changes reflected in developments in Illinois law, on June 1, 2011, Illinois established civil unions that allowed same-sex, as well as opposite-sex couples to form unions that were recognized by the state.  Then on June 26, 2013, the U.S. Supreme Court ruled that the United States Constitution allowed for same-sex couples to marry.  The Court ruled that the Defense of Marriage Act, which denied federal benefits to same-sex couples, was unconstitutional in that it defined marriage as between one man and one woman.  See United States vs. Windsor, 133 S.Ct. 2675 (2013).

 

On June 1, 2014 a law took effect that allowed for same-sex marriage in Illinois, and Illinois became one of thirty-seven other states and the District of Columbia to legalize same-sex marriage.  The Illinois General Assembly had proposed same-sex marriage legislation every session from 2007 to 2013, however it was not until November 2013 that the law was passed.  Between November 2013 and the effective date, a court ruled that same-sex couples in Cook County could marry immediately and need not wait for June, which was later extended to other counties.  Parties that had previously entered into a civil union were also able to convert their civil unions in to marriages without a new ceremony or paying a separate fee within the first year. If the union was converted in that time period, the date of the marriage would be retroactive to the date of the civil union.  Now, both same-sex civil unions and marriage are legal in Illinois.

 

While the Parentage Act has always and still does only apply to unmarried parents with children, it is useful to have a broader understanding of developments in Illinois law that have happened alongside the renovation of the Act.  Many provisions of the Act have remained the same.  For instance, the Act still provides for the care, custody, and control of children, still awards child support, and still contains provisions for removal and other major issues that can arise in parentage and custody cases.  The changes to the 1984 act are more nuanced.  Below is a summary of changes to the Parentage Act, which went into effect on January 1, 2016.

 

Definitions:

The Act removes the designation of “mother” and “father” and instead uses the term “parent.”  This change makes the law gender neutral, which fulfils the requirements of the Illinois Constitution and provides for same-sex couples with children.

 

Presumption of Parentage:

The Act changes the presumption of parentage.  It provides that a parent-child relationship extends equally to every child and to his or her parent or to each of his or her two parents, regardless of the legal relationship of the parents and regardless of whether the parent is a minor.

 

This change also defines how a party can establish parentage.  The Act provides for four rebuttable presumptions of parentage whereas the old version had two rebuttable presumptions and two conclusive presumptions.  Specifically, in the 1984 version of the act, parentage could be established if a mother proves she gave birth to the child or, in the case of a father, a man is presumed to be the natural father of a child if he was married to the natural mother and the child is born or conceived during the marriage; if he is married to the mother and on the child’s birth certificate; or if he has signed an acknowledgement of paternity.  The presumption of parentage for married couples can be rebutted only by clear and convincing evidence.  The presumption of parentage for a father who has signed an acknowledgment of paternity is conclusive of parentage unless the acknowledgement is rescinded within 60 days after signing.

 

The Act, as revised, provides for four rebuttable presumptions of parentage.  A person is presumed a parent in the following four instances: 1) if the child is born while a person and the child’s mother are married or in a civil union or other similar legal relationship; 2) if the child was born during or within 300 days after the termination of said relationship; 3) if the child was born during or within 300 days after termination of an invalid marriage, civil union, or similar legal relationship but the parties had attempted to comply with the law; and 4) if the person enters into said form of relationship with the child’s mother after his or her birth and that person is listed as a parent on the child’s birth certificate.  An acknowledgement of paternity can now only be challenged within a two-year period from the date it was signed on the basis of fraud, duress, or mistake.

 

DNA Testing:

The Act allows courts to deny motions for DNA testing if the conduct of a presumed parent stops that person from denying parentage or if it would be inequitable to deny the parent-child relationship.  This revision was put in place to avoid situations where a presumed parent has acted as the child’s parent for many years, but later the biological parent enters the picture seeking to be designated as the parent.  This revision sets forth the procedure a court must go through to determine whether or not to allow genetic testing in a particular case.  The court must consider the following, among other factors:  length of time between the child’s birth and the time the presumed parent learns he or she is not the biological parent; length of time the presumed parent has parented the child; the child’s age; the type of relationship between the child and presumed parent versus the alleged parent; and any harm that may result from rebutting the presumption of parentage with genetic testing.

 

With all of these new developments in Illinois law affecting families as well as parentage or divorce cases, it is critical to consult an experienced attorney to understand how they may apply to you.