SB1867 98TH GENERAL ASSEMBLY

LRB098 08701 HEP 38823 b

98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014
SB1867

Introduced 2/15/2013, by Sen. Chapin Rose

SYNOPSIS AS INTRODUCED:

750 ILCS 45/5	from Ch. 40, par. 2505
750 ILCS 45/6	from Ch. 40, par. 2506
750 ILCS 45/7	from Ch. 40, par. 2507

Amends the Illinois Parentage Act of 1984. Provides that a man may bring an action to declare the non-existence of the parent and child relationship, even after the man has signed an unrescinded acknowledgment of parentage, if, as a result of deoxyribonucleic acid (DNA) tests, it is discovered that the man adjudicated to be the father is not the natural father of the child. Effective immediately.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Parentage Act of 1984 is amended by changing Sections 5, 6, 7, and 8 as follows:

(750 ILCS 45/5) (from Ch. 40, par. 2505)

Sec. 5. Presumption of Paternity.

(a) A man is presumed to be the natural father of a child if:

(1) he and the child's natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage;

(2) after the child's birth, he and the child's natural mother have married each other, even though the marriage is or could be declared invalid, and he is named, with his written consent, as the child's father on the child's birth certificate;

(3) he and the child's natural mother have signed an acknowledgment of paternity in accordance with rules adopted by the Department of Healthcare and Family Services under Section 10-17.7 of the Illinois Public Aid Code; or

(4) he and the child's natural mother have signed an acknowledgment of parentage or, if the natural father is someone other than one presumed to be the father under this Section, an acknowledgment of parentage and denial of paternity in accordance with Section 12 of the Vital Records Act.

(b) A presumption under subdivision (a)(1) or (a)(2) of this Section may be rebutted only by clear and convincing evidence. A presumption under subdivision (a)(3) or (a)(4) is conclusive, unless the acknowledgment of parentage is rescinded under the process provided in Section 12 of the Vital Records Act, upon the earlier of:

(1) 60 days after the date the acknowledgment of parentage is signed, or

(2) the date of an administrative or judicial proceeding relating to the child (including a proceeding to establish a support order) in which the signatory is a party;

except that if a minor has signed the acknowledgment of paternity or acknowledgment of parentage and denial of paternity, the presumption becomes conclusive 6 months after the minor reaches majority or is otherwise emancipated.

(c) Notwithstanding the provisions of subsection (b) of this Section, a presumption under subdivision (a)(3) or (a)(4) may also be challenged in an action brought under subsection (b-5) of Section 7 of this Act.

(Source: P.A. 95-331, eff. 8-21-07.)

(750 ILCS 45/6) (from Ch. 40, par. 2506)

Sec. 6. Establishment of Parent and Child Relationship by Consent of the Parties.

(a) A parent and child relationship may be established voluntarily by the signing and witnessing of a voluntary acknowledgment of parentage in accordance with Section 12 of the Vital Records Act, Section 10-17.7 of the Illinois Public Aid Code, or the provisions of the Gestational Surrogacy Act. The voluntary acknowledgment of parentage shall contain the social security numbers of the persons signing the voluntary acknowledgment of parentage; however, failure to include the social security numbers of the persons signing a voluntary acknowledgment of parentage does not invalidate the voluntary acknowledgment of parentage.

(1) A parent-child relationship may be established in the event of gestational surrogacy if all of the following conditions are met prior to the birth of the child:

(A) The gestational surrogate certifies that she is not the biological mother of the child, and that she is carrying the child for the intended parents.

(B) The husband, if any, of the gestational surrogate certifies that he is not the biological father of the child.

(C) The intended mother certifies that she provided or an egg donor donated the egg from which the child being carried by the gestational surrogate was conceived.

(D) The intended father certifies that he provided or a sperm donor donated the sperm from which the child being carried by the gestational surrogate was conceived.

(E) A physician licensed to practice medicine in all its branches in the State of Illinois certifies that the child being carried by the gestational surrogate is the biological child of the intended mother or the intended father or both and that neither the gestational surrogate nor the gestational surrogate's husband, if any, is a biological parent of the child being carried by the gestational surrogate.

(E-5) The attorneys for the intended parents and the gestational surrogate each certifies that the parties entered into a gestational surrogacy contract intended to satisfy the requirements of Section 25 of the Gestational Surrogacy Act with respect to the child.

(F) All certifications shall be in writing and witnessed by 2 competent adults who are not the gestational surrogate, gestational surrogate's husband, if any, intended mother, or intended father. Certifications shall be on forms prescribed by the Illinois Department of Public Health, shall be executed prior to the birth of the child, and shall be placed in the medical records of the gestational surrogate prior to the birth of the child. Copies of all certifications shall be delivered to the Illinois Department of Public Health prior to the birth of the child.

(2) Unless otherwise determined by order of the Circuit Court, the child shall be presumed to be the child of the gestational surrogate and of the gestational surrogate's husband, if any, if all requirements of subdivision (a)(1) are not met prior to the birth of the child. This presumption may be rebutted by clear and convincing evidence. The circuit court may order the gestational surrogate, gestational surrogate's husband, intended mother, intended father, and child to submit to such medical examinations and testing as the court deems appropriate.

(b) Notwithstanding any other provisions of this Act, paternity established in accordance with subsection (a) has the full force and effect of a judgment entered under this Act and serves as a basis for seeking a child support order without any further proceedings to establish paternity.

(c) A judicial or administrative proceeding to ratify paternity established in accordance with subsection (a) is neither required nor permitted.

(d) A signed acknowledgment of paternity entered under this Act may be challenged in court only on the basis of fraud, duress, or material mistake of fact, or in an action brought under subsection (b-5) of Section 7 of this Act, with the burden of proof upon the challenging party. Pending outcome of the challenge to the acknowledgment of paternity, the legal responsibilities of the signatories shall remain in full force and effect, except upon order of the court upon a showing of good cause.

(e) Once a parent and child relationship is established in accordance with subsection (a), an order for support may be established pursuant to a petition to establish an order for support by consent filed with the clerk of the circuit court. A copy of the properly completed acknowledgment of parentage form shall be attached to the petition. The petition shall ask that the circuit court enter an order for support. The petition may ask that an order for visitation, custody, or guardianship be entered. The filing and appearance fees provided under the Clerks of Courts Act shall be waived for all cases in which an acknowledgment of parentage form has been properly completed by the parties and in which a petition to establish an order for support by consent has been filed with the clerk of the circuit court. This subsection shall not be construed to prohibit filing any petition for child support, visitation, or custody under this Act, the Illinois Marriage and Dissolution of Marriage Act, or the Non-Support Punishment Act. This subsection shall also not be construed to prevent the establishment of an administrative support order in cases involving persons receiving child support enforcement services under Article X of the Illinois Public Aid Code.

(Source: P.A. 92-16, eff. 6-28-01; 93-921, eff. 1-1-05; 93-1095, eff. 3-29-05.)

(750 ILCS 45/7) (from Ch. 40, par. 2507)

Sec. 7. Determination of Father and Child Relationship; Who May Bring Action; Parties.

(a) An action to determine the existence of the father and child relationship, whether or not such a relationship is already presumed under Section 5 of this Act, may be brought by the child; the mother; a pregnant woman; any person or public agency who has custody of, or is providing or has provided financial support to, the child; the Department of Healthcare and Family Services if it is providing or has provided financial support to the child or if it is assisting with child support collection services; or a man presumed or alleging himself to be the father of the child or expected child. The complaint shall be verified and shall name the person or persons alleged to be the father of the child.

(b) An action to declare the non-existence of the parent and child relationship may be brought by the child, the natural mother, or a man presumed to be the father under subdivision (a)(1) or (a)(2) of Section 5 of this Act. Actions brought by the child, the natural mother or a presumed father shall be brought by verified complaint.

After the presumption that a man presumed to be the father under subdivision (a)(1) or (a)(2) of Section 5 has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.

(b-5) An action to declare the non-existence of the parent and child relationship may be brought subsequent to an adjudication of paternity in any judgment or administrative determination of paternity made in accordance with Section 10-17.7 of the Illinois Public Aid Code by the man adjudicated to be the father pursuant to the presumptions in Section 5 of this Act if, as a result of deoxyribonucleic acid (DNA) tests, it is discovered that the man adjudicated to be the father is not the natural father of the child. Actions brought by the adjudicated father shall be brought by verified complaint. If, as a result of the deoxyribonucleic acid (DNA) tests, the plaintiff is determined not to be the father of the child, the adjudication of paternity and any orders regarding custody, visitation, and future payments of support may be vacated.

(c) If any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court, which may include an appropriate agency. The court may align the parties.

(d) Regardless of its terms, an agreement, other than a settlement approved by the court, between an alleged or presumed father and the mother or child, does not bar an action under this Section.

(e) If an action under this Section is brought before the birth of the child, all proceedings shall be stayed until after the birth, except for service or process, the taking of depositions to perpetuate testimony, and the ordering of blood tests under appropriate circumstances.

(Source: P.A. 95-331, eff. 8-21-07.)

Section 99. Effective date. This Act takes effect upon becoming law.