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The Catalyst
The newsletter of the ISBA’s Standing Committee on Women and the Law

December 2014, vol. 20, no. 4

Illinois’ modern family: House Bill 1243

Background

The Center for Disease Control estimates that more than 40% of children born from 2007 to 2013 were born to unmarried women. Illinois currently operates under the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq.) and the Illinois Parentage Act (750 ILCS 40/1 et seq.), which are not only outdated, but do not provide equal rights to both parents, regardless of the parents’ legal relationship.

Specifically, the recent holding of In Re Parentage of J.W., 2013 IL 114817, demonstrates the dual standard afforded to unmarried parents compared to divorced parents. In J.W., the Illinois Supreme Court held that custody and visitation under the current Parentage Act must be evaluated under Section 602 of the Illinois Marriage and Dissolution of Marriage Act, or the best interest standard. See also J.S.A. v. M.H., 224 Ill. 2d 182, 211 (2007) (“[T]he right of a biological father to establish paternity to a child born to a marriage does not also mean that the legal rights flowing from the parent and child relationship are automatically conferred.”). Thus, even though paternity is established in a paternity action, any parental rights such as custody or visitation are not granted unless it is in the best interests of the child. See In Re Parentage of John M., 212 Ill. 2d 253, 264-65 (2004).

Contrast this holding with a custody and visitation determination in divorce cases, which are evaluated utilizing Section 607 of the Illinois Marriage and Dissolution of Marriage Act. Section 607 gives the non-custodial parent a rebuttable presumption of reasonable visitation absent a showing that this visitation would seriously endanger the child.

Noting this gap between the current law and the reality of societal norms, on February 1, 2013, Representative Kelly Burke introduced House Bill 1243 (HB 1243) to eliminate the dual Parentage Acts. The drafting committee for HB 1243 consists of professionals from the Illinois Family Law Study Committee, representatives from the Illinois State Bar Association Family Law Section Council, Healthcare and Family Services, and the Illinois Attorney General’s Office.

HB 1243 – Highlights and Changes

Since HB 1243 is essential to protect Illinois’ modern families. We, as practitioners, should know the key differences and highlights of this proposed legislation.

Article 1: Public Policy and Definitions

Beyond reaffirming the public policy behind the Parentage Act of 1984, HB 1243 expands Illinois’ public policy relating to parentage actions. HB 1243 includes that the parent-child relationship extends equally to every child and to every parent, regardless of the legal relationship of the child’s parents and regardless of whether a parent is a minor. It should be noted that Illinois continues to be a two-parent state.

Quite possibly the most significant revision reflected in Article 1 is the addition of 22 definitions compared to the four reflected in the current Parentage Act. Some additional definitions include “donor” relating to assisted reproduction, “gestational mother” and “substantially similar relationship.”

Article 2: Parent-Child Relationship and Establishment and Presumption of Parentage

This article includes the presumptions contained in the current Parentage Act. Particularly, HB 1243 now extends to children born to civil unions or “substantially similar relationship[s].”

Article 3: Voluntary Acknowledgement of Paternity.

Similar to the current Parentage Act, this Article outlines the execution, acknowledgment, denial, rescission, and challenges to the Voluntary Acknowledgement of Paternity (VAP). The distinct difference between this Article and Section 6 of the current Parentage Act is the removal and relocation of the topic of gestational surrogacy.

This article also outlines the rescission procedures for acknowledged parents, which is limited to sixty days after the effective date of the acknowledgment or the date of a judicial or administrative proceeding relating to the child (including a proceeding to establish a support order) in which the signatory is a party. After the sixty days or the date of the proceeding, the acknowledged parent can only challenge the acknowledgement on the basis of fraud, duress, or material mistake of fact by filing a verified petition within two years after the effective date of acknowledgement or denial.

Article 4: Genetic Testing

This Article allows for voluntary and court-ordered genetic testing of an individual to determine parentage. Outside of the deletion of the introductory sentence of Section 11 of the current Parentage Act, Article 4 of HB 1243 codifies 750 ILCS 45/11 in its entirety as Section 401 through Section 408. The current 750 ILCS 45/11 was revised and updated in 2011 with HB 2606 drafted by the Illinois State Bar Association Family Law Section Council.

Article 5: Temporary Relief

This Article is retained from 750 ILCS 45/13 and 45/13.1 of the current Parentage Act.

Article 6: Proceedings to Adjudicate Parentage

Just as with any other civil proceeding, this Article conforms parentage actions to the rules of civil procedure. This Article dictates standing, jurisdiction, venue, notice, summons, and joinder. Further, this Article distinguishes between actions involving children having either a presumed parent or an acknowledged parent.

Finally, Article 6 of HB 1243 provides procedures relative to genetic testing, specifically the factors that the court can rely upon in denying a motion for genetic testing, the admissibility of genetic testing, expenses relating to same, and the consequences of declining genetic testing.

An important consideration of this Article is found in the 10 identified factors that a court can utilize in denying motions for genetic testing. This allows parentage courts to consider the circumstances of a given case before ruling on a motion that subjects the child and the litigants to a DNA test.

Article 7: Child of Assisted Reproduction

This Article provides for parentage of children born by assisted reproductive technology, including in-vitro fertilization. In addition, this Article provides for provisions in the event of death or divorce of a donor prior to implantation. Article 7 of HB 1243 should be highlighted as an effort to align the Parentage Act with the advances in science and medicine.

Article 8: Support and Judgments

This Article incorporates language from Section 505 of the Illinois Marriage and Dissolution of Marriage Act. The Article incorporates language from 750 ILCS 45/4.1, 45/13.1, 45/14, 45/14.1, 45/14.5, 45/15, 45/15.1, 45/15.2, 45/16, 45/17, 45/18, 45/20, 45/20.5, 45/20.7, 45/21, 45/22, and 45/23.

Article 9: Miscellaneous Provisions

This Article repeals the Illinois Parentage Act of 1984, 750 ILCS 45, and 750 ILCS 40/1-3.

HB 1243 also removes Section 750 ILCS 45/12.1, which discusses the validity of settlement orders that allow a mother to receive a settlement in exchange for waiving her rights to bring an action for parentage.

Conclusion

HB 1243 is currently referred to the Rules Committee and is on House Amendment No. 7. As stated by Siobhan Morrissey in The New Neighbors: Domestic Relations Law Struggles to Catch Up with Changes in Family Life, 88 ABA J. 37, 38 (March 2002), “[t]he domestic unit in early 21st century America [has become] a crazy quilt of one-parent households, blended families, singles, unmarried partnerships and same-sex unions.” Accordingly, HB 1243 deserves our support as it broadens the protection to both parents and children of unmarried couples. HB 1243 truly brings the Parentage Act from archaic to contemporary in an effort to protect Illinois’ modern family. ■

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1. Emily A. Hansen is an Associate Attorney at Bennett Law Firm, LLC, located in Oak Brook, Illinois. Emily concentrates her practice in family law, including parentage, divorce, child custody and post-decree matters. Emily practices in Cook, DuPage, Will and Kane counties.