Guardian Ad Litem Overcomes Father’s Voluntary Acknowledgment of Paternity

The Illinois Supreme Court has affirmed an order of the circuit court judge who granted a petition filed by the guardian ad litem (GAL) for the minor, A.A., to vacate a voluntary acknowledgment of paternity (VAP) signed by the respondents Matthew A. and Caitlin S. with regard to the minor. The appellate court affirmed and held that after DNA testing established that Matthew was not the biological father of A.A., the trial court was not required to make a “best interest of the child” determination prior to granting the petition.

Following A.A.’s birth on April 26, 2013, Matthew and Caitlin signed a VAP pursuant to section 6(a) of the Illinois Parentage Act of 1984, 750 ILCS 45/6(a). Caitlin, A.A.’s mother had been married to Jakob S., who signed a denial of paternity as to A.A.

On June 10, 2013, the state filed a petition for adjudication of wardship in juvenile court following an investigation of the Department of Children and Family Services (DCFS) into the conditions of the home where A.A. was living with Caitlin, Matthew and Caitlin’s three other children. The state claimed that there was neglect and an injurious environment based upon inadequate supervision, lack of cleanliness in the home and hygiene issues concerning the four children.

On June 13, 2013, the trial judge entered an agreed order, which awarded temporary custody of the four minors to the guardianship administrator of DCFS. At the same hearing, the court ordered DNA testing to determine if Matthew or Jakob was the biological father of P.S., who was one of Caitlin’s other three children.

On Aug. 1, 2013, a status hearing was held without a court reporter present. The docket record entry sheet indicates that the trial judge ordered DNA testing on that day to determine whether Matthew was the biological father of A.A. The record is silent on his motion and DNA testing was ordered. At the time of the hearing, A.A. and P.S. were living in a foster home while the other two children of Caitlin were living together in another foster home.

On Sept. 23, 2013, a DCFS representative testified at a review hearing that Caitlin had identified Cort, who had died the previous month, as the possible biological father of A.A. The representative testified that DNA testing of A.A. and Matthew would be done that same day.

On Nov. 15, 2013, an adjudicatory hearing was held. Caitlin and Matthew were represented by the same attorney; the GAL appeared for the four minors. Matthew testified that he had learned that he is the father of P.S. but not the father of A.A.

Following that hearing, it was ordered that DNA testing be set to determine if Cort was A.A.’s biological father. Because Cort had died, the DNA testing would be done through Cort’s parents. It was found that the DNA test showed that Matthew was not the biological father of A.A. The trial judge appointed a separate lawyer to represent Matthew.

The parents of Cort filed a petition to intervene asserting that the DNA testing revealed that they are A.A.’s biological grandparents and that if the court terminated the rights of A.A.’s parents, they wanted to adopt A.A.

On Feb. 18, 2014, the GAL filed a petition for leave to declare a nonexistence of a parent-child relationship between A.A. and Matthew and to vacate the VAP signed by Matthew and Caitlin. The GAL’s motion was filed in family court and was consolidated with the neglect proceeding in juvenile court.

On Feb. 21, 2014, the trial court allowed the GAL, over Matthew’s objection, to file the petition to declare the nonexistence of a parent-child relationship.

On March 17, 2014, a hearing was begun on the GAL’s petition. Caitlin testified that she knew that Cort was A.A.’s father and that it contributed to their breakup after he denied it. Because she was married to Jakob at the time of A.A.’s birth, she needed someone to sign the VAP when she was unable to reach Cort. Caitlin testified that it was Matthew’s intent to raise A.A. as his own.

On May 8, 2014, the trial court entered an order declaring the nonexistence of a parent-child relationship between Matthew and A.A. based on the DNA test results that established Cort was A.A.’s biological father. The trial court vacated the VAP and declared a parent-child relationship between Cort and A.A. The court subsequently granted the petition of the grandparents to intervene and stayed further proceedings pending the disposition of Matthew’s appeal.

The appellate court affirmed the order of the trial court and remanded the case for further proceedings. In doing so, the appellate court rejected Matthew’s claim that the trial court was required to make a best interest of the child determination before granting the GAL’s petition. The appellate court held that before the best interest standard can be applied to determine a parent’s rights to custody, visitation and support, the party must first be a parent. The appellate court acknowledged that a man who signs a VAP is presumed to be the child’s father. The DNA results in this case established that Cort was in fact A.A.’s father. This appeal was taken on a petition for leave to appeal to the Illinois Supreme Court.

The sole issue raised by Matthew was whether a best interest of the child determination was required prior to the trial court granting the GAL’s petition to declare the nonexistence of a parent-child relationship between Matthew and A.A. The court found that the Parentage Act “contains no express requirement that a court consider the best interest of a child before any testing is conducted for a legal determination of paternity is made.” In re Parentage of John M., 212 Ill.2d 253 (2004).

In conclusion, the trial court was not required to make a best interest of the child determination prior to granting the GAL’s petition to disestablish paternity between Matthew and A.A. The judgement of the appellate court was therefore affirmed.

In re A.A., 2015 IL 118605 (Nov. 19, 2015).

Kreisman Law Offices has been handling probate litigation, guardianship litigation, commercial litigation and catastrophic injury cases for individuals, families and businesses for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Rosemont, River Grove, Flossmoor, Arlington Heights, Elk Grove Village, Mundelein, Palatine, Palos Heights, Hinsdale, Wheaton, Elgin, Joliet, Bensenville and Long Grove, Ill.

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