Legal Question: Child Support (Illinois)

Let’s say that a man has been paying child support to his ex-wife for years. She suddenly has an epiphany that the kid isn’t his. In Illinois, the man who accepts responsibility for the kid (by signing the birth certificate, or other means) is the one who pays whether he’s the actual father or not. If a DNA test is done that proves the kid is not his he can have the child support stopped. Does anyone know if he can also sue for back payments?

BTW – I’m not the dad in this case.

IANAL, and of course this varies by location, but I do know that in many places, the fact that a man presents a child as his is all that is needed; even if years down the line, it is discovered that it isn’t his child, if he has treated and presented the child as his own (regardless of whether he knew or not), he is responsible for that child.

In looking for a cite, I found this page:

Bolding mine, of course. I interpret this as saying that without a paternity test, the fact that the father’s name was published at the baby’s birth as the father is sufficient to say “He’s the dad” and that this establishes legal paternity, if not necessarily biological paternity.

I’d be surprised if that were so. But I don’t have anything more than my gut to go on.

I’ve been involved in cases in Nevada and Ohio where the law is the opposite. In Nevada, if paternity is litigated in the divorce (and it has to be), the issue is res judicata and cannot be raised again. The result was similar in Ohio, but I think the rationale was a little different. In other words, once paternity is established, it can’t be contested.

I don’t know if Illinois law is as you say, but even if it is, I doubt a court would let you sue the mom. The new dad, OTOH, might be fair game.

On the third hand, I’m not an Illinois lawyer and I don’t specialize in family law. I also don’t represent you and am not giving legal advice to you. If you want specific legal advice, contact a specialist in Illinois.

Hope this helps.

I did my research first. There’s no questioning that he is the legal father of the child. And I found numerous cases where a suspicious dad had a DNA test done and was successfully able to have child support stopped. But I haven’t been able to find anything further. I agree that it’s unlikely that he would be able to sue and get his money back since he was the legal parent, I just wanted to see if anyone knew for sure - maybe a lawyer or someone who’s been through it.

I worked for a year as a Child Support Enforcement Tech in Ohio.

Cases like this crossed my desk from time to time, generally at the stage where the AP (absent parent) was filing for a paternity test after a specific period of time.

I heard stories about APs successfully suing for paid support that they didn’t owe, but they were all apocryphal. My understanding is that it was handled through regular Civil court, rather than through Domestic Relations or Juvenile. I never saw any actual evidence of such a case.

Confirmed, admitted APs did have the option of filing for repayment of any overpayments after the child was legally emancipated, and we would track those via our normal enforcement methods.

Probably not much help, but it’s all I’ve got. I’ve conciously repressed most of my memories of that job, since it was the crappiest I’ve ever had.

If he is paying child support to his ex-wife, then the issue of paternity was determined in the divorce or dissolution case. As such, it cannot now be relitigated.

*See, e.g., *In re PATERNITY OF VICTOR PAUL ROGERS III

Oh, and this is a good one:

http://www.divorcesource.com/research/dl/paternity/98sep169.shtml

If paternity was established non-judicially, the result might be different, but that was not the hypothetical that was given.

See generally, Illinois Parentage Act of 1984.

This rule raises a complicated issue, though: What happens if the real dad shows up and wants to visit his child?

http://www.divorcesource.com/research/dl/paternity/98sep169.shtml

The dad needs to contact an Illinois attorney who is an expert in Illinois family law.