Before You Sign… Be Sure You’re The Daddy

By Richard J. Coffee, II, Litigation Manager Illinois Offices, Cordell & Cordell, P.C.

Once executed and not rescinded within 60 days, the VAP is a binding determination of paternity and creates the imposition of the financial responsibilities for the child.

For a man in an intimate, non-marital relationship with a woman, the three words that can lead to potentially irreversible legal decisions aren’t “Let’s get married,” but “I am pregnant.”   Where pregnancy outside of marriage once required formal paternity court proceedings and paternity testing to resolve the man’s rights and obligations, in the past several years Congress and state legislatures have created a scheme of administrative programs which can establish or waive paternal rights and obligations – the Voluntary Acknowledgement of Paternity and the Putative Father Registry.  The uninformed or overly-trusting man navigates these programs and the issues of paternity at his peril.

 

The Voluntary Acknowledgement of Paternity (VAP) is the result of the Personal Responsibility and Work Opportunity Reconciliation Act (Pub. L. 104-193, 110 Stat. 2105), which Congress passed in 1996.   States participating in federal funding for their public assistance programs to families with dependent children must comply with the requirements of the Federal law.   One of the requirements is that the state must provide a process for voluntarily acknowledging paternity which may be rescinded only within 60 days and that only may be challenged in court on the basis of fraud, duress, or material mistake of fact.

Once executed and not rescinded within 60 days, the VAP is a binding determination of paternity and creates the imposition of the financial responsibilities for the child.  Since the VAP is tied to the public assistance programs, it does not establish the father’s parental rights, only the obligation for support that may prevent the child from requiring public assistance.  If the father wishes to pursue parental or visitation rights, he will have to initiate separate custody proceedings.

While the VAP form may include various warnings and disclaimers, and a hospital employee or social worker may provide additional information on the irrevocable nature of the VAP, the emotionality of the birthing experience, the pressure from the mother, or a misplaced sense to “do the right thing” can lead to signing the VAP.  The execution of the VAP includes a waiver of the right to paternity (DNA) testing.    You may feel certain that you are the father and that not accepting paternity immediately may irritate or anger the mother, but the potential legal and financial entanglement of what appears to be the signing of a simple form admitting what you believe to be true can be formidable.  Declining to sign the VAP and obtaining paternity testing is generally the better course.

Within 60 days of signing the VAP, either party may rescind the VAP without the consent of the other, but after that period a court order finding fraud, duress, or material mistake of fact will be required to vacate the VAP.  The difficulty in proving fraud, duress, or material mistake of fact to vacate the VAP under the laws and court rulings of a specific state vary.   Even a subsequent paternity test may not be sufficient to rescind the VAP and the man may be held liable for the financial support of the child that is not biologically his, solely on the basis of signing the VAP.  The Illinois Supreme Court reached such an interpretation in 2004 in Department of Public Aid v. Smith, ruling that a subsequent paternity test that shows the man is not the father was not sufficient for the man to reverse the stipulation of paternity he signed in the VAP.  The Illinois case is an extreme example of how difficult it may be to reverse a VAP.

In addition to the VAP, many states have a registry for men to claim that they may be the father of a child, referred to as the Putative Father Registry.  The primary purpose of the Putative Father Registry is to assure notice to the man in the event the child is placed for adoption.  The Putative Father Registry provisions in a given state may or may not also create obligations on the man to commence legal proceedings to determine paternity, submit to paternity testing, or even support of the child.  Failure to act within the timelines or deadlines to register as the putative father, or pursue paternity proceedings after registration, may result in the waiver of any right to contest any efforts at adoption of the child by the mother and her husband or by another couple. 

These two procedures, the Voluntary Acknowledgement of Paternity and Putative Father Registry, do not involve formal legal proceedings or judicial oversight in the execution of the documents.  The procedures do create or impact significant legal obligations and rights through the simple execution of documents.  As with all legal documents, consultation with a qualified attorney is strongly recommended before signing the Voluntary Acknowledgement of Paternity or enrolling in the Putative Father Registry. 

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.

 

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