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Who is a Presumed Parent in Illinois?

Posted on in Family Law

joliet paternity lawyerDepending on the circumstances and timing of a child’s birth, some Illinois parents will need to take additional steps to ensure that they are their child’s legal parent. Other individuals are presumed to be a parent based on a legal relationship with the child's mother. If you are a presumed parent, then you will generally not need to take additional steps to designate yourself as a legal parent to the child. In Illinois, biological parentage is not required to sustain a presumption of legal parentage. For example, if a woman is married to another woman who gives birth, both women will be presumed legal parents of the child. The law surrounding parentage is not nearly as simple as it was throughout most of history. 

Everything from new technological developments in reproduction to the long-belated acceptance of same-sex parents has had a noticeable impact on Illinois’ parentage laws. There is a reason that Illinois now uses the gender-neutral term “parentage” rather than the old term, “paternity.” An attorney can help you ensure that you are the legal parent to your child. 

Understanding the Presumptions of Parentage 

When someone is a “presumed” parent, they are automatically treated as the child’s legal parent. One of the simplest ways to become a presumed parent is to be married or in a similar legal relationship, such as a civil union with the mother of the child. 

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Will County family law attorneyTrust and honesty are extremely important in a relationship. You and your spouse should be comfortable telling each other just about anything - especially when it comes to their financial status. Yet, it happens all the time that people sign a prenuptial agreement thinking they have all the right information, only to find out that some very important things were left out. If you were not represented by a lawyer when you signed your prenuptial agreement, you probably did not do a huge amount of fact-checking. After all, this was the person you were about to marry. You were likely very happy together at the time, even if that happiness stemmed from a falsehood on your spouse’s part.

Now, if things have changed and you are thinking about divorce, your prenuptial agreement could be very important. The good news is that if you were tricked or coerced, your prenuptial agreement may not be enforced against you. 

Prenuptial Agreements Based on Dishonesty, Coercion, or Unfairness

Not all prenuptial agreements are inherently unfair, despite the way they are commonly portrayed in media. Often, couples who are able to sit down together and work out a fair deal are very strong couples. If the idea of actually sitting down, making important financial disclosures, and then compromising on important terms sounds foreign to you, there is a possibility that your spouse has taken advantage of you. 

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orland-park-parentage-attorney.jpgAn increasing number of same-sex couples are raising children together. The growing number of same-sex couples with children is one of the reasons that Illinois now uses the term “parentage” instead of “paternity.” A child growing up with two moms or two dads will consider both adults their parents. It is very important to make sure that the law also sees both same-sex partners as the child’s legal parents. While it may not be possible for a same-sex couple to have a biological child in common, it is certainly possible for same-sex couples to have a legal child in common. Illinois offers several routes to legal parenthood for gay and lesbian couples that may not be so easily available in other states. Establishing both of you as your child’s legal parents provides additional security to the child in the event that the parents separate or divorce, or in case one parent passes away. If you are unsure whether you and your partner both have a legal parent-child relationship with your child, our lawyers can help. 

What Options do Same-Sex Parents Have for Establishing Parentage?

Same-sex parents generally have the same options for establishing legal parentage that opposite-sex parents do. It matters little whether the child is biologically related to either of you for the purpose of creating a legal parent-child relationship. In Illinois, gay and lesbian parents can establish parentage by methods including: 

  • Marriage - If you and your spouse were already married or in a civil union when your child was born to one of you, Illinois will simply presume that you are both the child’s parents. In this case, the presumption of parentage is automatic and you probably do not need to take any further action. This typically does not apply if a gay man has a child with a woman outside the marriage unless a surrogacy agreement is in place.

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Il divorce lawyerIt is often said that around 50 percent of all marriages end in divorce. The actual statistics are unknown, but even if the divorce rate is not that high, the fact remains that a significant percentage of marriages do not last. For those who are planning to get married or who are in a happy relationship, divorce may not seem to be likely. However, it can be a good idea to consider the possibility that a relationship will end, and by making decisions ahead of time through a prenuptial or postnuptial agreement, a couple can help avoid conflict and uncertainty in the future.

Prenups Vs. Postnups

A prenuptial agreement (prenup) will be signed by a couple before their wedding, while a postnuptial agreement (postnup) can be created at any time after spouses become legally married. Both types of agreements can address the same issues, including detailing how certain issues may be handled during a couple’s marriage and making decisions about what will happen if their marriage ends through divorce, legal separation, or the death of either spouse.

Generally, prenups and postnups will be limited to addressing matters related to a couple’s property and finances. An agreement may specify that certain assets owned by the spouses will remain separate property rather than marital property, or it may decide on how different assets and debts will be divided in the event of a divorce. A prenup or postnup may also include details about spousal maintenance, including specifying whether one spouse will pay support to the other or deciding on the amount that will be paid and the duration that payments will last. However, prenuptial or postnuptial agreements generally cannot make decisions about child custody, and they cannot reduce the amount of child support that a parent would be required to pay by law.

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IL family laywerBeing a single parent can be extremely difficult. Your child’s needs do not decrease just because they only have one parent to care for them and provide for them. In Illinois, children have the right to be supported financially by both of their parents. This typically takes the form of child support payments. One problem that many single mothers face is that the father of their child refuses to acknowledge that he is indeed the child’s other parent. This can create a roadblock, but with the help of a skilled attorney, it is often a very surmountable roadblock.

Even if the father refuses to acknowledge paternity voluntarily, Illinois state law provides a mechanism for establishing paternity involuntarily. If you are faced with this difficult situation, you should strongly consider speaking to an attorney about your options.

How Can Paternity be Established if My Child’s Father Will Not Cooperate?

Even if your child’s father refuses to accept or admit that he is the father, there are still ways to establish paternity. In many cases, the Department of Healthcare and Family Services will intervene and try to resolve the situation before involving the court. They may be able to conduct a paternity test or create a legal presumption of parentage if the father fails to show up.

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