Wednesday, September 24, 2014

Taking a Child Out of State During and After a Divorce



Taking a Child Out of State During and After a Divorce


Before a court order is in effect in a divorce, both parents in a marriage have equal rights to child custody. When the parents decide to get a divorce, the issue of child custody is very important, and parents may even agree and petition the court for joint custody.  However, some parents may petition the court for sole custody of the child.  Regardless of a court awarding sole vs. joint custody, each parent will be awarded a parenting schedule, unless it would be detrimental to the child.

In some cases, one parent may get an opportunity to move from Illinois (say, for a new job opportunity), and may want to move with the child. Because this would interfere with the other parent’s parenting schedule, the other parent often decides to challenge the move in court.

Permanent Moves

A parent seeking to move to another state with a child must seek court approval for the move, unless there is already an order stating otherwise. As with most matters concerning children, the court will grant or deny permission for a move out of state after considering the best interests of the child. The parent who wants to move has the burden of providing evidence to the court showing the move is in the child’s best interests.

Some of the factors the judge will consider in arriving at a decision on the child’s best interest include:

  • The likelihood that the move will enhance the general quality of life for both the custodial parent and the children. 
  • The motives of the custodial parent in seeking the move - if the parent is moving to avoid the other parent’s visitation rights. 
  • The motives of the noncustodial parent in resisting the removal. 
  • How the other parent will be able to exercise visitation rights, and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. 
  • How the child will be affected by the move away from the non-custodial parent.
Temporary Stays
For vacations and other trips, almost all Custody Judgments include language allowing each party to temporarily take the children out of state during a parent’s time for vacations, and no new court order is needed.  Nevertheless, the parent must inform the other parent or the other parent’s attorney of the trip, provide contact information for the place the child will be during the out-of-state visit, and also inform the parent of when the child will return. A parent should not try to take a child out of state to file for custody in another state. Illinois courts will still retain jurisdiction over the child no matter what state they are in during this temporary visit.

Contact a Chicago Attorney

If you have a custody order in place and the other parent is trying to permanently remove the child from Illinois, and you are opposed to this move, contact the family law attorneys at
M. Scott Gordon & Associates for a consultation in your case.

Skokie, IL office:      847-329-0101
Chicago, IL Office:   312-360-0250


Thursday, September 18, 2014

Can I Stop Paying Child Support If I Find Out The Child Is Not Mine?



Can I Stop Paying Child Support If I Find Out The Child Is Not Mine?


In Illinois, an unwed father who wishes to acknowledge the paternity of a child can sign a Voluntary Acknowledgment of Paternity (VAP). This is a form that can be signed at the hospital between unwed parents, to establish the man as the child’s father. After signing the VAP, a father can be put on the birth certificate. Once a man has signed a VAP, he has 60 days from the date it is signed to withdraw it. If the VAP is not withdrawn in time, the voluntariness of the acknowledgment can only be challenged in court on the basis of fraud, duress, or material mistake of fact.

Under Illinois law, a father-child relationship, including an obligation to support the child, does not depend on the parents’ marital status. Therefore, a father who acknowledges paternity through a VAP (or who is found by a court to be the father) can be ordered to pay child support to the mother of the child to help with the child’s upbringing. A problem may arise for the father if, after child support payments have been ordered and paid, the father discovers he is not the child’s father. Current Illinois law makes it very difficult for a man who previously signed a VAP to be released from his obligation to pay child support, even when a DNA test shows he is not the father. This is because the law views an acknowledgment of paternity through a VAP as conclusive evidence of paternity as to the father who signed it.  New law has been proposed to allow a father who previously signed a VAP to challenge it based on DNA testing showing he is not the father.

Despite what a couple believes at the time of the child’s birth, it is wiser to hold off on signing a VAP until DNA testing can definitively establish the man as the child’s father. In fact, the VAP form informs the couple of the father’s right to seek genetic testing before acknowledging paternity. Therefore, a father who signs the VAP anyway is seen to be waiving the right to testing, and acknowledging that despite not having proof, he accepts he is the father. The form also warns that the father will be responsible for child support and other financial obligations until the child is 18 years old, and beyond. While asking for a DNA test may cause friction within the parents’ relationship, it may save the alleged father thousands in child support payments he would otherwise not owe if the child is not his biologically.

Contact a Chicago Family Attorney

If you acknowledged paternity of a child, and later found out that you were not the child’s biological father, you may want to stop making child support payments. Before stopping payments, consult the Chicago area family law attorneys
M. Scott Gordon & Associates and see how we can help you. Stopping payments without a court order could lead to interest charges for late payments, amongst other unwanted problems.