LEGAL GUIDE
Written by attorney James Richard Rowe II | Jun 3, 2010

I'm being sued for child support I'm NOT the father! (Q&A)

Q. I was served with notice of a lawsuit claiming that I am the father of a child I know is not mine. The woman is seeking child support from me. What do I do?

A. You have been served with a Complaint to Determine Parentage and Establish Support, which is exactly what it sounds like: a lawsuit seeking to (1) have you declared to be the minor’s father; and (2) for an order directing you to pay child support to the minor’s mother. It appears that the mother (called the plaintiff/petitioner) has named you as the “putative father", which is to say you are the “alleged" father. And although being named in the lawsuit provides you no absolute rights to your “alleged" child, such as visitation, etc., it does carry certain responsibilities. First and foremost, even if you are certain that you are not the father, you cannot simply ignore this lawsuit. If you ignore the lawsuit and do not appear in court, the court will automatically presume that you are the father, and will enter an order finding you to be the legal father of the minor in your absence. Therefore, the first rule is simple: show up.

Once you have appeared in court and informed the court that you will be contesting paternity of the child, the court will make two inquiries of the parties. First, the court will want to determine whether you have ever signed a “Voluntary Acknowledgement of Paternity (VAP)". This is a form that fathers are asked to sign at the hospital if they are not married to their child’s mother at the time of birth. If you signed a VAP or were married at the time of the child’s birth then you are automatically presumed to be the father until proven otherwise. However, if there is no VAP, which is often the case, then you will be entitled to have a DNA test to determine parentage. The DNA test results will be considered conclusive evidence of paternity, and are usually available by the next court date, or approximately 60 days after the test. At that next court date, if not earlier, you will learn the results of the paternity test. If you are excluded as the father by the test, the case will not proceed. If the test determines that you are the father, a paternity order should be entered.

If you are the father, you will want to make sure you have every opportunity to be involved in your child’s life, and if you believe you can provide a better environment for your child you may seek custody. Although courts will consider joint-custody, that does not always mean you share the child 50/50; your visitation rights could still be limited to weekends, or less. The custodial parent is entitled to child support, which is based on statute (barring exceptional circumstances). In Illinois, support for one child is 20% of your net income, for two children it would be 28%, for three it is 32%, and up to 50% for six or more children. The non-custodial parent may also be asked to pay for the child’s medical insurance, daycare, and educational expenses.

But with responsibilities, come rights. You’ll have the right to visitation if not custody, and the right to make sure the other parent doesn’t interfere with your right to be a dad. While you are in court you should make sure you obtain an order of visitation and take steps to protect your other rights regarding parenting. A family law attorney can assist you in protecting and enforcing your rights.

Children are our most precious commodity, and now more than ever children need their moms and dads involved in their lives. If you are the father, be sure to be there…it will make all the difference.

James Rowe is an attorney with The Law Firm of Rowe & Associates and can be reached at 312/345-1357 or via email at [email protected].

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