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Paternity When the Husband Is Not the Biological Father

Posted on in Child Support

Paternity When the Husband Is Not the Biological FatherWhen a child is conceived or born while a woman is married, Illinois law presumes that the husband is the legal father of the child. In some cases, the husband is not the biological father, possibly because of adultery or a relationship prior to the marriage. If you are the presumed father of a child that is not yours, you may want to free yourself of any financial obligation to the child. Getting divorced will not change presumed paternity, but there are legal processes to establish the biological father as the parent.

Denial of Paternity

If both you and your wife acknowledge that the child is not yours, you can sign a Denial of Paternity form within two years of the child’s birth. The form, which is filed with the Illinois Department of Healthcare and Family Services, states that:

  • The presumed father is waiving all rights and duties as a father;
  • The parents can rescind the Denial of Paternity within 60 days of it going into effect;
  • The Denial of Paternity is only valid if the biological mother and father sign a Voluntary Acknowledgement of Paternity form; and
  • By signing the Denial of Paternity form, the presumed parents are giving up their right to genetic testing.

If the biological father cannot be found or you cannot prove he is the father, you may remain the presumed father.

Legal Action

If you do not agree on paternity, you can take your wife and the suspected biological father to court. The surest way to prove parentage is to demand genetic testing. The suspected father can refuse the test, but the court may then conclude that he is the father. Once paternity is established, the court will decide:

  • The allocation of parental responsibilities, including parenting time and decision-making; and
  • Child custody payments that each parent must contribute.

Keeping Paternity

You may decide that you still want to be the child’s father, even if you are not the biological father. As previously mentioned, you are the child’s presumed father if you are married to the mother at the time of the birth. However, the biological father has the right to establish paternity and request allocation of parental responsibilities. If the biological father has no interest in being a parent, he can waive his parental responsibilities by allowing you to adopt the child.

Paternity Lawyers

If you question whether you are the biological father of your presumed child, you need an experienced attorney to guide you through your legal options. A Naperville family law attorney at Calabrese Associates, P.C. can establish paternity and negotiate your responsibilities as a parent. To schedule an appointment, call 630-393-3111.


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