ALL IN THE FAMILY Who’s Your Daddy? When you find out it’s not yours
By DAN STEFANI
Dan Stefani is a principal at Katz & Stefani. The firm’s practice is limited to family law matters. His work on behalf of mainly high net-worth clients, as well as spouses of high net-worth individuals, involves valuations of closely held corporations, partnerships and other entities, detailed analysis of complex financial transactions, child custody and support issues as well as paternity and domestic violence.
What do you do when your ex-wife tells you that one of your children who is age 12 is not yours? This was Johnny Sparks’ dilemma in May 2016, a month following their divorce. Johnny and his ex-wife Carole were married on Dec. 4, 1992. During the marriage, they had five children, including a daughter J.S., born in May 2004, who was their only minor child as of the divorce date.
Johnny and Carole entered into a Joint Parenting Agreement and Marital Settlement Agreement which in part addressed Johnny’s financial obligations for J.S.’s expenses, his decision-making authority and parenting time.
Johnny alleged that Carole informed him for the first time that he was not J.S.’s biological father about a month following the divorce. Prior to that time, he had no knowledge or reason to believe that he was not J.S.’s biological father.
Based on this information, Johnny filed a petition to terminate his parent-child relationship with J.S. pursuant to Section 2-1401 of the Illinois Code of Civil Procedure and Section 205(c) of the Illinois Marriage Parentage Act of 2015.
Even though Johnny was presumptively J.S’s parent because J.S. was born during his marriage to Carole, the act allows for a termination of a parent-child relationship if it is asserted timely under Section 205(c) which states, in part “If, as a result of DNA testing it is discovered that the presumed father is not the father, then any orders regarding the allocation of parental responsibilities, parenting time and future payments of support may be vacated.”
Section 205(d) of the act states that a petition under 205(c) shall be barred if brought more than two years after the petitioner obtains actual knowledge of relevant facts that the parent is not a biological parent of the minor child. Johnny asserted that his petition was timely because it was filed within two years of him acquiring actual knowledge of relevant facts that he was not J.S.’s biological father.
He also requested that the circuit court order an admissible DNA test pursuant to Section 614 of the act. The circuit court granted Johnny’s motion for genetic testing and the results confirmed that Johnny was not J.S.’s biological father.
The trial court then conducted a hearing on the issue of when Johnny acquired actual knowledge of the relevant facts concerning J.S.’s biological paternity. The trial court granted Johnny’s petition, finding that his filing was timely because it was filed within two years of Johnny acquiring actual knowledge of the relevant facts regarding J.S.’s biological parentage.
As a result, the trial court then found that Johnny was not J.S.’s biological or legal parent and vacated all of the previously entered orders relating to Johnny’s custody, allocation of parental responsibilities, parenting time and financial support for J.S.
Carole appealed to the 1st District Appellate Court which affirmed the trial court’s ruling. In re Marriage of Sparks, 2018 IL App (1st) 180932.
Carole offered numerous arguments as to why the appellate court should reverse the trial court. Namely, Carole argued that the trial court should have held a hearing pursuant to certain provisions in the act to consider J.S.’s best interests prior to ordering genetic testing and when conducting a hearing on Johnny’s petition to terminate the parent-child relationship with J.S.
Carole also argued that the act required the appointment of a guardian ad litem, child representative or an attorney for J.S. prior to ordering genetic testing. Carole next argued that Johnny’s petition was barred by the two-year statute of limitations in Section 205(d) of the act, contending that Johnny had the burden to prove by clear and convincing evidence that he did not have actual knowledge of the relevant facts.
Finally, Carole argued that the evidence at trial resulted in Johnny having actual knowledge of the relevant facts regarding whether he was J.S.’s biological father on or about the birth of J.S. Ultimately, the appellate court disagreed with all of Carole’s arguments and affirmed the trial court’s decision.
The rationale for the appellate court’s disagreement with some of Carole’s arguments is noteworthy. Specifically, the appellate court disagreed with Carole’s argument that the trial court was required to consider the minor child’s best interests when considering whether to terminate his parental rights.
Carole argued that the Illinois Supreme Court case of In re Marriage of Kates stood for the proposition that the court must consider the child’s best interests in such a situation. The court clarified that Kates did not stand for what Carole argued, rather, it stood for the proposition that a DNA test disproving paternity was a condition precedent to the filing of an action to declare the nonexistence of a parent-child relationship. The court noted that Johnny followed the holding in Kates by obtaining a DNA test before filing.
Next, Carole argued that a guardian ad litem should have been appointed by the court. The appellate court noted that a guardian was never requested to be appointed by Carole. Further, J.S.’s interests were protected since Carole took a position that advanced the best interests and arguments of J.S. Consequently, it was not reversible error that J.S. had no independent representation.