The changes discussed herein mostly arise from the repeal of the Parentage Act of 1984 and its replacement with the Parentage Act of 2015, the extensive modification of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). Both sets of changes are effective January 1, 2016. The last section discusses child support, including the additional changes that are effective July 1, 2017. Unless otherwise specified, all provisions discussed below concern the laws that will go into effect on January 1, 2016 or July 1, 2017. When clarification is necessary we refer to the earlier version of IMDMA as “pre-2016 IMDMA” and the new version as “IMDMA 2016.” This summary assumes familiarity with the laws in effect before 2016.
NOTE: This guide was developed for the Borderless Pro Bono Project (BPBP). It is not exhaustive and is designed to cover only the issues that come up most frequently in BPBP cases. We recommend you read the statutes, and also take the BPBP online elearning course. The IMDMA amendments include significant changes relating to dissolution of marriage, but these are not covered here. Application of some IMDMA laws is different in parentage vs. dissolution cases. This guide focuses on application of the laws to parentage cases.
Common to all subject areas: Court actions that are commenced prior to January 1, 2016 but are not finished by January 1, 2016 will be subject to the provisions of the new law for any issues not yet decided. 750 ILCS 5/801.
Parentage Act of 2015
General changes and presumptions of paternity
- The Parentage Act of 2015, 750 ILCS 46/100 et seq., replaces the Parentage Act of 1984, 750 ILCS 45/1 et seq.
- It has language referencing a child and his “two” parents, indicating possible legislative intent to limit a child to two legal parents. 750 ILCS 46/102.
- It adds definitions, in 750 ILCS 46/103:
- Adjudicated parent: a parent who has been adjudicated to be the parent by a court or administrative hearing (divorce or paternity action).
- Presumed parent: someone presumed to be a parent by a marital presumption.
- Acknowledged father: a man who established paternity by VAP. 2
- Alleged father: a man alleging himself to be a father, other than a presumed parent, whose parentage has not yet been determined.
- The marital presumption of parentage explicitly applies to same sex married couples. So if a biological mother is married to another woman during the relevant timeframes, her wife is presumed to be the parent just as a husband would be. 750 ILCS 46/204(a).
- It contains provisions for resolving conflicting presumptions (for instance if a mother is married to one man at conception and another at birth, both would be presumed to be the father). 750 ILCS 46/204(b).
- The timeframe for creation of a parentage presumption based on a marriage that ended before the birth of the child is changed from “the time of conception” to “300 days before birth.” 750 ILCS 46/204(a).
- There is a new provision, 750 ILCS 46/610, which allows a court to deny a motion for genetic testing in a proceeding to adjudicate parentage of a child who has a presumed, acknowledged or adjudicated parent under certain conditions having to do with the conduct of the person seeking the testing, the equities, and the best interest of the child.
Voluntary Acknowledgment of Paternity (VAP)
- The most common paternity issue Prairie State clients face – regret about having signed a VAP and the desire to get out of it – has not changed much.
- The VAP can now be signed before birth but is not effective until the child’s birth or filing with IDHFS, whichever occurs later. 750 ILCS 46/304.
- The VAP still becomes conclusive 60 days after its effective date or a court or administrative proceeding (whichever is earlier).
- A VAP can only be challenged in court based on fraud, duress, or material mistake of fact. 750 ILCS 46/308 and 309. Such an action may only be brought within two years of the VAP’s effective date, except that time during which the person challenging the VAP is under legal disability or duress or the ground for relief is fraudulently concealed is excluded from computation of that time. This may allow a person who signed the VAP as minor to challenge it (under the difficult fraud etc. standard) until age 20.
- The language contained in the 1984 Act stating that a VAP signed by a minor is not conclusive until 6 months after the minor reaches majority is gone. There now appears to be no difference between VAPs signed by minors and VAPs signed by adults. It is unclear how this will affect minors who sign the VAP in or before 2015 and who will not yet be 18 ½ as of the beginning of 2016. To be safe, such minors should seek to challenge a VAP in 2015.
- Despite the inclusion of same sex couples in the marital presumption law, it appears that unmarried same sex couples still cannot establish a parent/child relationship by signing the VAP. The VAP is still limited to a father and a mother. 750 ILCS 46/201. 3
Time limits for establishing the parent/child relationship.
- The new law imposes much stricter time limits to establish a different person as the legal parent if the child has a presumed, acknowledged, or adjudicated parent. (This is probably the area that will most impact Prairie State clients.)
- The old law allowed a person with standing to establish paternity (the mother, child, a man presumed to be or alleging himself to be the father, or IDHFS) to file a suit to establish paternity up until the child’s 20th birthday.
- This was the case even if the child already HAD a legal or presumed father, and could lead to a child having three legal parents, because the time limits for challenging an existing parent/child relationship were much stricter and it was not required to challenge the existing parent/child relationship in order to establish a new one.
- The new law tries to prevent some such messes by imposing stricter time limits in establishment cases where the child already has a legal father/parent.
- For a child who has a presumed (by marriage) parent, a paternity suit can only be brought by an alleged father within two years of when he knew, or should have known, about the relevant facts. 750 ILCS 46/608.
- For a child who has an acknowledged (parentage by VAP) or adjudicated (parentage established by dissolution or paternity judgment) parent, the time limit is two years after the effective date of the adjudication or acknowledgment for a person other than the child or a party to the adjudication or signatory to the acknowledgement to seek to establish parentage. 750 ILCS 46/609
Time limits for establishing non-existence of a parent child relationship
- As was the case under the 1984 law, this type of action can only be brought by the child, the mother, or someone presumed to be the parent by a marriage. 750 ILCS 46/205.
- The time limit for bringing such an action is now two years after when the petitioner knew or should have known of the relevant facts. The “should have” language is new.
- However, a presumed father can maintain an action to declare the non-existence of a parent/child relationship at any time if the court determines that the presumed father and mother neither co-habited nor engaged in sexual intercourse during the probable time period of conception. 750 ILCS 46/608.
Illinois Marriage and Dissolution of Marriage Act
Custody and Visitation: Now “Allocation of Parental Responsibility”
- Terminology changes. 750 ILCS 5/600.
- The new term allocation of parental responsibility encompasses the former concepts of custody and visitation.
- Parental responsibility encompasses both significant decision-making responsibility and parenting time. There are separate best interest factors for significant decision-making responsibility and parenting time.
- Allocation of significant decision-making authority is the equivalent of legal custody.
- The term parenting time under the IMDMA 2016 encompasses the time that both parents spend with the children. 750 ILCS 5/602.7. The term visitation now refers only to time a non-parent spends with the child (e.g. grandparent visitation).
- A parenting plan is a written agreement that allocates significant decision making, parenting time, or both.
- Allocation of parental responsibility
- Allocation of parental responsibilities: significant decision-making responsibility, 750 ILCS 5/602.5.
- Retains most of the best interest factors from the old law, except that it does not include as a factor the relationship between parent and child. Adds a factor of history of decision making.
- Requires allocation of significant decision-making responsibility in four major life areas: education, religion (with some exceptions), health, and extra-curricular activities. Either or both parents can be allocated responsibility in any of these areas.
- Allocation of parental responsibilities: parenting time, 750 ILCS 5/602.7. Contains most of the same best interest factors as the significant decision-making section, except that it includes as a factor the relationship between child and parent, and lacks the factor of history of decision making.
- Allocation of parental responsibilities: significant decision-making responsibility, 750 ILCS 5/602.5.
- Parenting time for parent not allocated significant decision-making responsibility, 750 ILCS 5/602.8. Similar to the provisions for parent visitation under pre-2016 IMDMA, except that it appears to overrule In re J.W. as it states that “a parent who has established parentage under the laws of this state and who is not granted significant decision making responsibilities is entitled to reasonable parenting time unless….(serious endangerment standard).”
- Visitation by certain non-parents, 750 ILCS 5/602.9. This is equivalent to the nonparent visitation law in pre-2016 IMDMA, and now is in its own statutory section.
- Designation of custodian for purposes of other statutes, 750 ILCS 5/606.10. The only place in the new statute that mentions “custody,” it requires that a parenting plan designate a custodian for purposes of state and federal laws that require designation of custody, and also specifies that for purposes of school code residence determination the parent with the majority of parenting time is considered to have legal custody.
- Parental relocation, 750 ILCS 5/609.2.
- This section contains big changes from pre-2016 IMDMA, which allowed moves anywhere within the state without court permission, but required court permission to move a child across state lines.
- The concept of “relocation” replaces the concept of “removal.” Relocation is defined in 750 ILCS 5/600(g) and means to move the child more than 25 miles from her home if the original home is Cook or the collar counties; more than 50 miles if the original home is not in a collar county; and more than 25 miles from her original home if the move is out of state. Illinois remains the home state in case of an out of state relocation within 25 miles of the original home.
- The relocation requirements apply if judgment has been entered.
- The Parentage Act of 2015 specifies, in 750 ILCS 46/502, that injunctive relief can be entered pre-judgment to prohibit a parent from moving the child out of state or require the parent to return the child to Illinois. This injunctive relief provision is the same as under the old law.
- Relocation by the parent who has been allocated the majority of parenting time, or either parent if equal parenting time was allotted, requires a filed notice of intent to relocate. If the other parent signs the notice and the relocating parent files the signed notice no court action is required. If the non-relocating parent does not agree, court action and showing of best interest is required before a relocation. 750 ILCS 5/609.2.
- Parenting time restriction and enforcement. 750 ILCS 5/603.10 and 750 ILCS 5/607.5.
- Restriction of Parental Responsibilities: 750 ILCS 5/603.10 allows restriction of significant decision-making responsibility or parenting time if the court finds that the parent engaged in behavior that seriously endangered the child’s health or impaired the child’s development. It specifically authorizes remedies that many of our clients ask for, such as prohibition against drinking during or before visitation, and restriction of presence of specified persons.
- Abuse of allocated parenting time, 750 ILCS 5/607.5. This statute is somewhat confusingly titled because it deals generally with non-compliance with a parenting time order, and does not address other types of parenting time abuse. It includes the same remedies as pre-2016 IMDMA, 750 ILCS 5/607.1 for non-compliance with parenting time. It eliminates the definition of parenting time abuse, possibly because this concept is covered in 750 ILCS 5/603.10.
- Parenting plan, 750 ILCS 5/602.10.
- Under IMDMA 2016, all parents in a cases involving allocation of parental responsibilities must file a parenting plan within 120 days of service. o If either parent fails to file a plan, the court will conduct an evidentiary hearing to allocate parental responsibilities.
- If the parents agree on a plan, the court will approve it unless it is unconscionable but can, on its own motion, conduct a hearing to determine whether it is in the child’s best interests.
- If the parents do not agree on a plan, then the court will determine parental responsibilities and will take the proposed plans into account.
- The requirements for what must be in the plans are fairly detailed and laid out in the statute at 750 ILCS 5/602.10(f).
- Modification, 750 ILCS 5/610.5.
- Modification within two years, 750 ILCS 5/610.5(a). Same standard as under pre-2016 IMDMA, except that a motion to restrict under 750 ILCS 5/603.10 may be brought at any time.
- Modification beyond two years, 750 ILCS 5/610.5(c)-(e).
- Similar test as under the old law for substantial change and necessary for child’s best interests, except that burden of proof is lowered from clear and convincing to preponderance of the evidence.
- Adds new provisions about modification without a substantial change in circumstances in certain cases, including to reflect the actual care arrangement or minor changes.
- Modification of parenting time: There is not a separate standard for modification of parenting time equivalent to the pre-2016 IMDMA “visitation can be modified at any time it is in the best interests of the child” standard. Modifications of parenting time are subject to the same standards (referenced above) as modifications of significant decision-making responsibility.
- The terminology is slightly different: obligor becomes “supporting parent” and obligee becomes “parent receiving support”. 750 ILCS 5/505. Student loan repayments are included as a deduction from income for net-income calculation. 750 ILCS 5/505(a)(3)(h).
- Child support for post-secondary educational expenses and support for adult disabled children are separated out into separate sections. See 750 ILCS 5/513 and 750 ILCS 5/513.5.
- The educational expenses section, 750 ILCS 5/513, limits allowable expenses to an index based on the costs for in state tuition, costs, and fees of University of Illinois Urbana Champaign, and also specifies that a child is not a beneficiary of this sort of child support and ordinarily cannot file to establish or enforce an order on her own behalf.
- Support for pregnancy and birth-related costs can only be ordered if the action is brought within two years after the child’s birth. 750 ILCS 46/802(b).
- In the fall of 2016, the Illinois Legislature passed a new statute that completely changes the way child support is calculated in Illinois. The new law is effective July, 1, 2017.
- The new law considers and combines both parties’ incomes when determining the child support award.
- The law eliminates the former percentages and creates what is called the income shared approach. “To calculate child support based upon the parent’s combined adjusted net income estimated to have been allocated to the child if the parents and children were living in an intact household”. 750 ILCS 5/505 (a)(1)(D)
- The model uses a statutory table to determine the percentage of the obligor’s income
- Offers more flexibility to account for cases with high child care expenses or different parenting situations
- The statute goes on to calculate income in a slightly different manner than under current law
- Income is defined in 750 ILCS 5/505 (a)(3). For the first time, it is explicitly clear that spousal maintenance, alimony, received pursuant to a court order is income for child support purposes.
- Public benefits pursuant to a means-tested program such as Supplemental Security Income, Temporary Assistance to Needy Families, Supplemental Nutrition Assistance Program, and Child support for other children in the household are not income. Social Security Disability and retirement benefits are included in income.
- If a parent is unemployed or underemployed voluntarily, there is a rebuttable presumption that the income is “75% of the most recent United States Department of Health and Human Services Federal Poverty Guidelines for a family of one person.” There is also “a rebuttable presumption that a minimum child support obligation of $40.00 per child, will be entered…”