People Ex Rel. Department of Public Aid v. Smith

818 N.E.2d 1204, 212 Ill. 2d 389, 289 Ill. Dec. 1, 2004 Ill. LEXIS 1027
CourtIllinois Supreme Court
DecidedSeptember 23, 2004
Docket97120
StatusPublished
Cited by62 cases

This text of 818 N.E.2d 1204 (People Ex Rel. Department of Public Aid v. Smith) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People Ex Rel. Department of Public Aid v. Smith, 818 N.E.2d 1204, 212 Ill. 2d 389, 289 Ill. Dec. 1, 2004 Ill. LEXIS 1027 (Ill. 2004).

Opinion

JUSTICE THOMAS

delivered the opinion of the court:

At issue is whether a man who signs a voluntary acknowledgment of paternity can later seek to undo the acknowledgment on the basis of DNA test results. We hold that he cannot.

BACKGROUND

On October 9, 1997, Valerie Dawson gave birth to Kendra Smith. Dawson and respondent, Romel Smith, executed a voluntary acknowledgment of paternity two days later. By executing this form, respondent became Kendra’s legal father. See 750 ILCS 45/6(a), (b) (West 2002). The acknowledgment form informed respondent that, by signing it, he would become “the legal father of the child for all purposes.” Moreover, the form advised respondent of his right to genetic testing, the legal consequences of his decision to sign the form, and what rights he was waiving by signing the form. Under the large bold heading “Notice of Rights and Responsibilities,” respondent was advised of the following:

“1. When the mother and alleged biological father properly sign the Voluntary Acknowledgment of Paternity form and, if required, the husband/exhusband and mother sign the Voluntary Denial of Paternity form, the alleged biological father becomes the legal father of the child for all purposes. The biological father and/or mother may be ordered to pay child support until the child is at least eighteen years old, including retroactive child support from the date of the child’s birth, reimbursement of public assistance paid to the custodial parent for the child; medical costs; and medical insurance for the child until the child is at least eighteen years old.
2. You have the right to an attorney, a hearing and a right to have genetic testing. When the alleged biological father and the mother sign the Voluntary Acknowledgment of Paternity they are waiving those rights. Custody of the child is presumed to be with the mother. The alleged biological father may petition the courts for custody and visitation rights.
3. You should have a genetic test if you are not sure who is the biological father of the child. If the results of the genetic testing show that the man is the biological father of the child you can sign the Voluntary Acknowledgment of Paternity form and the mother and husband/exhusband may sign the Voluntary Denial of Paternity form.
4. If you want legal advice you should talk to an attorney. If you would like to establish paternity without going to court or need other child support services, you may call the Illinois Department of Public Aid at 1-800-447-4278. Persons using a teletypewriter (TTY) may call 1-800-526-5812.”

Respondent’s signature appears on the form directly under an affirmation that he (1) had read and understood his rights and responsibilities listed on the form; (2) was waiving those rights; (3) did not want a genetic test; and (4) was accepting the obligation to provide child support.

On December 3, 1997, the State, on behalf of the Illinois Department of Public Aid, filed a petition to set child support. The petition alleged that respondent had failed to meet his obligations under the Illinois Public Aid Code and asked the circuit court to order respondent to pay child support commensurate with statutory guidelines. On May 4, 1998, the court ordered respondent to pay $38.18 per week in child support and further ordered him to obtain medical insurance coverage for Kendra.

On June 18, 2002, respondent filed a pro se petition to terminate child support. Respondent alleged in the petition that he was not Kendra’s biological father. The State moved to dismiss the petition pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2— 615 (West 2002)).

Respondent obtained an attorney and refiled his action as a complaint to declare the nonexistence of the parent and child relationship pursuant to section 7(b — 5) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/7(b — 5) (West 2002)). Respondent asserted in the complaint that he had signed the voluntary acknowledgment of paternity in 1997 based on Dawson’s representation that he was Kendra’s biological father. Respondent entered the military on or about July 7, 1998, and was discharged on or about December 12, 1999. During this time, respondent saw Kendra on only a few occasions. In March 2002, respondent began to doubt that Kendra was his child because she did not share any of his physical characteristics. Respondent had himself and Kendra tested at DNA Diagnostics Center on April 29, 2002, and the test results showed a 0% chance that he was Kendra’s biological father. The test results were certified on May 10, 2002, but respondent alleged that he did not receive them until June 17, 2002, because of administrative problems. Respondent attached the DNA test results to his complaint.

The State moved to dismiss the complaint pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 2002)), arguing that respondent could not pursue this action because he had signed a voluntary acknowledgment of paternity. The State relied on section 5(b) of the Parentage Act (750 ILCS 45/5(b) (West 2002)), which provides that the presumption of paternity arising out of a voluntary acknowledgment becomes conclusive if the acknowledgment is not rescinded upon the earlier of (1) 60 days after the acknowledgment 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.” The State further relied on section 6(d) of the Parentage Act (750 ILCS 45/6(d) (West 2002)), which provides that a voluntary acknowledgment of paternity may be challenged only on grounds of fraud, duress, or material mistake of fact.

Respondent argued in a brief in support of his complaint that he had filed a proper action pursuant to section 7(b — 5) of the Parentage Act, which provides as follows:

“An action to declare the non-existence of the parent and child relationship may be brought subsequent to an adjudication of paternity in any judgment by the man adjudicated to be the father pursuant to the presumptions in Section 5 of this Act if, as a result of deoxyribonucleic acid (DNA) tests, it is discovered that the man adjudicated to be the father is not the natural father of the child. Actions brought by the adjudicated father shall be brought by verified complaint. If, as a result of the deoxyribonucleic acid (DNA) tests, the plaintiff is determined not to be the father of the child, the adjudication of paternity and any orders regarding custody, visitation, and future payments of support may be vacated.” 750 ILCS 45/7(b — 5) (West 2002).

Section 7(b — 5) references the presumptions in section 5. These presumptions are as follows:

“§ 5.

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Cite This Page — Counsel Stack

Bluebook (online)
818 N.E.2d 1204, 212 Ill. 2d 389, 289 Ill. Dec. 1, 2004 Ill. LEXIS 1027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-department-of-public-aid-v-smith-ill-2004.