When a child is born, the biological mother’s name is listed on the child’s birth certificate. In most situations if the mother is married, her spouse will be listed as the child’s father. However, that is clearly not necessarily always the case. And sometimes, for a variety of reasons, a child’s birth certificate needs to be corrected.
Today, a large percentage of children born today are not born to married parents. In fact, according to the Center for Disease Control and Prevention – National Center for Health Statistics, the percentage of all births to unmarried women in 2015 was 40.3%.
There are certainly a wide of array of instances where a child’s parent may be left off of or incorrectly listed on the child’s birth certificate. By way of example, the mother may not know the identity of the child’s father at the time of the child’s birth. Or, the mother may be married, but her spouse is not the biological father of the child. There are also the issues of surrogacy, adoption, and sperm or egg donation, which can be complex and are issues for other blog posts. This blog post will specifically focus on the issue of correcting a child’s birth certificate when the child’s father is either incorrect or missing. For the sake of clarity, this post will refer to the child’s “father,” though the Illinois Parentage Act makes it clear that “insofar as practicable, the provisions of this Act applicable to parent-child relationships shall apply equally to men and women as parents.”
In a situation where the father listed on a child’s birth certificate needs to be changed – whether that be to add the missing parent’s name, which was previously missing, or correct the father’s name, there are specific procedures that need to be undertaken.
To begin, a parent-child relationship (“parentage”) must be established between the parent and the child. This can be done through a variety of different means. The law provides different presumptions of parentage, as follows. First, if the father and the mother were married, in a civil union, or in a substantially legal relationship when the child was born. Second, the father and the mother were married, in a civil union, or in a substantially legal relationship, and the child was born within 300 days after the relationship has ended, due to death, divorce, legal separation, declaration of invalidity, except as provided in the Gestational Surrogacy Act or other law. Third, if before the child was born, the father and the mother entered into a marriage, civil union, or substantially similar legal relationship, even if the relationship could be declared legally invalid, and the child is born during the relationship or within 300 days of its termination (due to one of the reasons listed above). Fourth, if after the child is born, the father and the mother enter into a marriage, civil union, or substantially legal relationship, even if the relationship could be declared legally invalid, and the person has consented in writing to being named as the child’s parent on the child’s birth certificate. The law provides that if two or more of these presumptions conflict, then the presumption “which on the facts is founded on the weightier considerations of policy and logic, especially the policy of promoting the child’s best interests, controls.”
Parentage is then established by completing a Voluntary Acknowledgement of Paternity form or by a court’s adjudication (ruling) as to a man’s parentage of a child. To begin that process, the mother or the parent seeking to be found as a parent must file a petition with the court. From there, if the matter is contested, DNA testing may be ordered by a court. If the court finds that an individual is a child’s parent, then a judge will sign a court order establishing paternity of the child.
Similarly, a court can rule on parentage through a legal adoption. A court order establishing parentage also creates a set of obligations on a parent to provide support, as well as rights to parenting time and parental responsibilities for the child. Lastly, parentage can be established through a valid and legal gestational surrogacy arrangement.
So, now that you have parentage established – but the child’s birth certificate is incorrect. What do you do next? According to the Illinois Department of Public Health Division of Vital Records, if you want to correct a birth certificate, you must complete the following affidavit. This affidavit must be properly completed and sent to the Illinois Department of Public Health Division of Vital Records office, along with the court document that establishes parentage. In completing the affidavit, several important personal details must be provided, regarding the child, the parent who is to be listed, and the parent that was incorrectly listed (if any).
If you would like legal assistance in the areas of establishing parentage, adoption, or correcting a child’s birth certificate, please contact us for a free consultation.