Paternity Actions

• Library: Guide to Illinois Statutes of Limitations and Repose (2018 Ed.)

PATERNITY ACTIONS

A. PATERNITY ACTIONS - LIMITATIONS

750 ILCS 45/8: Statute of limitation

An action brought by or on behalf of a child or an action brought by a party alleging that he or she is the child's natural parent is barred if brought later than 2 years after the child reaches the age of majority. If the Department of Public Aid is providing or has provided financial support for the child or if it is assisting with child support collection services, an action by DPA is barred if brought later than 2 years after the child reaches the age of majority. Any other public agency that is providing or has provided financial support to the child or assisting with child support collections services is barred from filing action 2 years after the agency has ceased to provide assistance to the child.

Failure to bring an action within 2 years does not bar any party from asserting a defense in any action to declare the non-existence of the parent and child relationship.

An action to declare the non-existence of the parent and child relationship is barred if brought later than 2 years after the petitioner obtains knowledge of relevant facts. The 2-year period for bringing an action to declare the nonexistence of the parent and child relationship does not extend beyond the date on which the child reaches the age of 18 years. Failure to bring an action within 2 years does not bar any party from asserting a defense in any action to declare the existence of the parent and child relationship.

The time during which any party is not subject to service of process or is otherwise not subject to the jurisdiction of the courts of the State tolls these periods.

Under 750 ILCS 45/5, a man is conclusively presumed to be the father of a child who signs an acknowledgement of paternity, or acknowledgment of parentage and denial of paternity, unless the acknowledgment of parentage is rescinded under the process provided in section 12 of the Vital Records Act, upon the earlier of: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.

Defendant, who signed acknowledgment of paternity in order for his name to appear on child's birth certificate, may not move to rescind acknow-ledgment as defense to child support petition more than 60 days after execution of acknowledgement; even though he alleged mother induced him to sign acknowledgment through fraud and deception. Illinois Department of Public Aid v. Graham, 328 Ill. App. 3d 433, 766 N.E.2d 272, 262 Ill. Dec. 652 (3d Dist. 2002). In People ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389 (2004), the supreme court held that unmarried men who sign a voluntary acknowledgment of paternity (VAP) cannot bring an action to declare non-paternity based on DNA testing under 750 ILCS 45/7(b-5), ruling that such an action may only be brought by a man whose paternity was presumed by marriage. While the putative father may not contest the voluntary acknowledgment of paternity, the child is not barred from challenging the paternity of the putative father. In re M.M., 401 Ill. App. 3d 416 (1st Dist. 2010). For a good discussion of the Smith case and the statute of limitations, see In re H.L.B., 2012 IL App (4th) 120437.

Action brought by mother of child previously adjudicated to be the child of respondent to establish the non-existence of a parent and child relationship was properly dismissed by the trial court as being barred by the two-year limitations period set forth in statute. Donath v. Buckley, 319 Ill. App. 3d 83, 744 N.E.2d 385, 253 Ill. Dec. 103 (3d Dist. 2001). However, where a woman filed suit to establish paternity of one man and to declare the non-paternity of her husband, the two year limitation period did not apply to bar the action. In re G.M., 2012 IL App (2d) 110370.

Limitations period, to establish the non existence of a parent and child relationship, started to run when child's mother told plaintiff that he was not child's father, and was tolled during periods of time that the mother refused to submit to blood testing. Jackson v. Newsome, 325 Ill. App. 3d 372, 758 N.E.2d 342, 259 Ill. Dec. 219 (1st Dist. 2001). It is the Plaintiff's burden to show that he only learned the "relevant facts" within two years of filing suit. In Re Marriage of Ostrander, 2015 IL App (3rd) 130775.

CAVEAT: These Guidelines are not a substitute for the statutory examination that is needed in considering a statute of limitations problem. We recommend such research. — Editors

In Ralda-Sanden v. Sanden, 2013 IL App (1st) 121117, the court held that the equitable tolling doctrine can be applied to allow a child to file a parentage claim otherwise barred by the statute of limitations.

Pub. Act 099-0085 (eff. Jan. 1, 2016) repeals the Illinois Parentage Act, and enacts the Illinois Parentage Act of 2015. The new Act keeps most of the prior law's limitation periods. Section 607 of the new Act provides that a child without a...