IICLE Family Law Flash Points - February 2014

1.         Timing for appealing denial of petition to vacate judgment and request for downward deviation of child support not tolled by the filing of fee petition. In a unique set of factual circumstances, after an alleged father of a minor child signed a Voluntary Acknowledgement of Paternity (VAP) and the trial court entered a custody and support order, a second alleged father filed a motion to intervene in order to vacate such orders after he obtained DNA evidence he was the biological father of the child.  The trial court denied the second alleged father’s Section 2-1401 motion to vacate the custody and support order, but allowed him to have court-ordered visitation and to pay child support.  Subsequently, three months passed between the entry of the order denying the motion to vacate and the second alleged father’s notice of appeal, during which time the child’s mother filed a request for the second alleged father to contribute to her attorneys’ fees.  The Appellate Court held, however, the filing of the petition for contribution to fees did not toll the time for filing a notice of appeal on the motion to vacate, and therefore, the Court did not have jurisdiction to review the trial court’s denial of the motion.  The Court used a similar analysis in holding that it also did not have jurisdiction to review the trial court’s order of a downward deviation on the second alleged father’s child support. In re the Custody of C.C., 2013 IL App (3d) 120342.

2.         Second alleged biological father’s parental status called into question in both majority opinion and dissent.  The unique set of factual circumstances in the case of In re the Custody of C.C., 2013 IL App (3d) 120342, led the Third District to write a rare advisory opinion on the subject of whether in paternity cases a court can recognize that a child may have two parents (in addition to the biological mother) who share equal court-ordered parental rights and obligations.  In In re the custody of C.C., a presumed biological father signed the Voluntary Acknowledgement of Paternity (VAP), but a second alleged biological father sought to vacate the judgment for paternity after he obtained DNA evidence that he was the actual biological father of the child.  Both the majority and dissent raised concerns that the current statutory scheme does not allow a trial court to order an actual biological father to pay any child support when the child has a presumed father per a VAP.  The question also arises whether the actual biological father has standing to intervene in the paternity action.  Because neither of these issues were appealed, the Court could not rule on them.  However, the Court did urge the legislature to consider alternatives that would make such determinations more clear for the trial courts. In re the Custody of C.C., 2013 IL App (3d) 120342.