SB2093 94TH GENERAL ASSEMBLY

LRB094 10879 LCB 41423 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2093

Introduced 2/25/2005, by Sen. Kimberly A. Lightford

SYNOPSIS AS INTRODUCED:

305 ILCS 5/10-17.7
410 ILCS 535/12	from Ch. 111 1/2, par. 73-12
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 Public Aid Code. Provides that the rules of the Illinois Department of Public Aid shall provide that every administrative determination of paternity, including those in which the mother and alleged father voluntarily acknowledge paternity in the form required by the Department, must be accompanied by genetic testing documentation supporting the determination. Provides that if an alleged father fails to respond to a notice, or fails to comply with an administrative order to submit to genetic testing, the Department may apply to the court for a summons and order compelling the alleged father to submit to genetic testing at a specified time and place. Provides that if the alleged father fails to comply with the summons or order, the Department may seek to enforce the court order with contempt proceedings. Amends the Illinois Parentage Act of 1984. Provides that in an action to declare the non-existence of the parent and child relationship and in any action to determine the existence of the father and child relationship, except those based upon the presumptions of paternity provided for the Act, the judgment shall not be rendered unless DNA tests have been conducted. Amends the Vital Records Act. Provides that voluntary acknowledgement of paternity must be accompanied by the results of DNA tests, conducted by an expert qualified as an examiner of blood or tissues types, showing the man to be the natural father of the child. Makes other changes.

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 Public Aid Code is amended by changing Section 10-17.7 as follows:

(305 ILCS 5/10-17.7)

Sec. 10-17.7. Administrative determination of paternity. The Illinois Department may provide by rule for the administrative determination of paternity by the Child and Spouse Support Unit in cases involving applicants for or recipients of financial aid under Article IV of this Act and other persons who are given access to the child support enforcement services of this Article as provided in Section 10-1, including persons similarly situated and receiving similar services in other states. The rules shall extend to cases in which the mother and alleged father voluntarily acknowledge paternity in the form required by the Illinois Department or agree to be bound by the results of genetic testing or in which the alleged father has failed to respond to a notification of support obligation issued under Section 10-4 and to cases of contested paternity. Any presumption provided for under the Illinois Parentage Act of 1984 shall apply to cases in which paternity is determined under the rules of the Illinois Department. The rules shall provide for notice and an opportunity to be heard by the responsible relative and the person receiving child support enforcement services under this Article if paternity is not voluntarily acknowledged, and any final administrative decision rendered by the Illinois Department shall be reviewed only under and in accordance with the Administrative Review Law. The rules shall provide that every administrative determination of paternity, including those in which the mother and alleged father voluntarily acknowledge paternity in the form required by the Illinois Department, must be accompanied by genetic testing documentation supporting the determination. Determinations of paternity made by the Illinois Department under the rules authorized by this Section shall have the full force and effect of a court judgment of paternity entered under the Illinois Parentage Act of 1984.

In determining paternity in contested cases, the Illinois Department shall conduct the evidentiary hearing in accordance with Section 11 of the Parentage Act of 1984, except that references in that Section to "the court" shall be deemed to mean the Illinois Department's hearing officer in cases in which paternity is determined administratively by the Illinois Department.

Whenever any alleged father fails to respond to a notice served on him pursuant to Section 10-4 or fails to comply with an administrative order to submit to genetic testing, the Illinois Department may apply to a court of competent jurisdiction for a summons and order compelling the alleged father to submit to genetic testing at a specific time and place, and upon the failure of the alleged father to comply, the Illinois Department may seek to enforce the court order with contempt proceedings.

Notwithstanding any other provision of this Article, a default determination of paternity may be made if service of the notice under Section 10-4 was made by publication under the rules for administrative paternity determination authorized by this Section. The rules as they pertain to service by publication shall (i) be based on the provisions of Section 2-206 and 2-207 of the Code of Civil Procedure, (ii) provide for service by publication in cases in which the whereabouts of the alleged father are unknown after diligent location efforts by the Child and Spouse Support Unit, and (iii) provide for publication of a notice of default paternity determination in the same manner that the notice under Section 10-4 was published.

The Illinois Department may implement this Section through the use of emergency rules in accordance with Section 5-45 of the Illinois Administrative Procedure Act. For purposes of the Illinois Administrative Procedure Act, the adoption of rules to implement this Section shall be considered an emergency and necessary for the public interest, safety, and welfare.

(Source: P.A. 92-590, eff. 7-1-02.)

Section 10. The Vital Records Act is amended by changing Section 12 as follows:

(410 ILCS 535/12) (from Ch. 111 1/2, par. 73-12)

Sec. 12. Live births; place of registration.

(1) Each live birth which occurs in this State shall be registered with the local or subregistrar of the district in which the birth occurred as provided in this Section, within 7 days after the birth. When a birth occurs on a moving conveyance, the city, village, township, or road district in which the child is first removed from the conveyance shall be considered the place of birth and a birth certificate shall be filed in the registration district in which the place is located.

(2) When a birth occurs in an institution, the person in charge of the institution or his designated representative shall obtain and record all the personal and statistical particulars relative to the parents of the child that are required to properly complete the live birth certificate; shall secure the required personal signatures on the hospital worksheet; shall prepare the certificate from this worksheet; and shall file the certificate with the local registrar. The institution shall retain the hospital worksheet permanently or as otherwise specified by rule. The physician in attendance shall verify or provide the date of birth and medical information required by the certificate, within 24 hours after the birth occurs.

(3) When a birth occurs outside an institution, the certificate shall be prepared and filed by one of the following in the indicated order of priority:

(a) The physician in attendance at or immediately after the birth, or in the absence of such a person,

(b) Any other person in attendance at or immediately after the birth, or in the absence of such a person,

(c) The father, the mother, or in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred.

(4) Unless otherwise provided in this Act, if the mother was not married to the father of the child at either the time of conception or the time of birth, the name of the father shall be entered on the child's birth certificate only if the mother and the person to be named as the father have signed an acknowledgment of parentage in accordance with subsection (5).

Unless otherwise provided in this Act, if the mother was married at the time of conception or birth and the presumed father (that is, the mother's husband) is not the biological father of the child, the name of the biological father shall be entered on the child's birth certificate only if, in accordance with subsection (5), (i) the mother and the person to be named as the father have signed an acknowledgment of parentage and (ii) the mother and presumed father have signed a denial of paternity.

(5) Upon the birth of a child to an unmarried woman, or upon the birth of a child to a woman who was married at the time of conception or birth and whose husband is not the biological father of the child, the institution at the time of birth and the local registrar or county clerk after the birth shall do the following:

(a) Provide (i) an opportunity for the child's mother and father to sign an acknowledgment of parentage and (ii) if the presumed father is not the biological father, an opportunity for the mother and presumed father to sign a denial of paternity. The signing and witnessing of the acknowledgment of parentage or, if the presumed father of the child is not the biological father, the acknowledgment of parentage and denial of paternity conclusively establishes a parent and child relationship in accordance with Sections 5 and 6 of the Illinois Parentage Act of 1984.

The acknowledgment of parentage shall be effective only if the acknowledgment is accompanied by results of deoxyribonucleic acid (DNA) tests, conducted by an expert qualified as an examiner of blood or tissues types, showing the man to be the natural father of the child.

The Illinois Department of Public Aid shall furnish the acknowledgment of parentage and denial of paternity form to institutions, county clerks, and State and local registrars' offices. The form shall include instructions to send the original signed and witnessed acknowledgment of parentage and denial of paternity to the Illinois Department of Public Aid.

(b) Provide the following documents, furnished by the Illinois Department of Public Aid, to the child's mother, biological father, and (if the person presumed to be the child's father is not the biological father) presumed father for their review at the time the opportunity is provided to establish a parent and child relationship:

(i) An explanation of the implications of, alternatives to, legal consequences of, and the rights and responsibilities that arise from signing an acknowledgment of parentage and, if necessary, a denial of paternity, including an explanation of the parental rights and responsibilities of child support, visitation, custody, retroactive support, health insurance coverage, and payment of birth expenses.

(ii) An explanation of the benefits of having a child's parentage established and the availability of parentage establishment and child support enforcement services.

(iii) A request for an application for child support enforcement services from the Illinois Department of Public Aid.

(iv) Instructions concerning the opportunity to speak, either by telephone or in person, with staff of the Illinois Department of Public Aid who are trained to clarify information and answer questions about paternity establishment.

(v) Instructions for completing and signing the acknowledgment of parentage and denial of paternity.

(c) Provide an oral explanation of the documents and instructions set forth in subdivision (5)(b), including an explanation of the implications of, alternatives to, legal consequences of, and the rights and responsibilities that arise from signing an acknowledgment of parentage and, if necessary, a denial of paternity. The oral explanation may be given in person or through the use of video or audio equipment.

(6) The institution, State or local registrar, or county clerk shall provide an opportunity for the child's father or mother to sign a rescission of parentage. The signing and witnessing of the rescission of parentage voids the acknowledgment of parentage and nullifies the presumption of paternity if executed and filed with the Illinois Department of Public Aid within the time frame contained in Section 5 of the Illinois Parentage Act of 1984. The Illinois Department of Public Aid shall furnish the rescission of parentage form to institutions, county clerks, and State and local registrars' offices. The form shall include instructions to send the original signed and witnessed rescission of parentage to the Illinois Department of Public Aid.

(7) An acknowledgment of paternity signed pursuant to Section 6 of the Illinois Parentage Act of 1984 may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenging party. Pending outcome of a 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.

(8) When the process for acknowledgment of parentage as provided for under subsection (5) establishes the paternity of a child whose certificate of birth is on file in another state, the Illinois Department of Public Aid shall forward a copy of the acknowledgment of parentage, the denial of paternity, if applicable, and the rescission of parentage, if applicable, to the birth record agency of the state where the child's certificate of birth is on file.

(9) In the event the parent-child relationship has been established in accordance with subdivision (a)(1) of Section 6 of the Parentage Act of 1984, the names of the biological mother and biological father so established shall be entered on the child's birth certificate, and the names of the surrogate mother and surrogate mother's husband, if any, shall not be on the birth certificate.

(Source: P.A. 91-308, eff. 7-29-99; 92-590, eff. 7-1-02.)

Section 15. The Illinois Parentage Act of 1984 is amended by changing Sections 5, 6, and 7 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 Illinois Department of Public Aid 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) The presumptions in items (3) and (4) of subsection (a) of this Section shall be effective only if the acknowledgment of paternity is accompanied by results of deoxyribonucleic acid (DNA) tests, conducted by an expert qualified as an examiner of blood or tissues types, showing the man to be the natural father of the child.

(Source: P.A. 89-641, eff. 8-9-96; 90-18, eff. 7-1-97.)

(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 or , Section 10-17.7 of the Illinois Public Aid Code, provided it is accompanied by the results of deoxyribonucleic acid (DNA) tests, conducted by an expert qualified as an examiner of blood and tissue types, showing the man to be the natural father of the child, 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 and intended father 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, 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.)

(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 Illinois Department of Public Aid 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 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.

(b-7) In an action to declare the non-existence of the parent and child relationship and in any action to determine the existence of the father and child relationship, except those based upon the presumptions in Section 5 of this Act, the judgment shall not be rendered unless deoxyribonucleic acid (DNA) tests have been conducted pursuant to Section 11 of this Act.

(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. 89-674, eff. 8-14-96; 90-18, eff. 7-1-97; 90-715, eff. 8-7-98.)