Illinois Family Law Advocate : Peoria Family Lawyer & Attorney : Shahzad R. Khan Law Firm : Divorce, Child Support : Chicago, Bloomington, Normal & Sangamon

If you are going through a divorce, are separated, or are involved in some other form of family law related litigation, be aware of what client's post on social networking sites.  Recently, the American Academy of Matrimonial Lawyers conducted a survey in which they determined that: "81% of the nation's top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years."  

This is true.  It is true because I have used this evidence against opposing parties in divorce and paternity litigation.  You will be surprised as to what evidence, clues, and information is posted on social networking sites for your client and the opposing party. Although the article specifically mentions Facebook, all social networking sites are fair game in family law litigation.  I also include dating sites as sources of valuable information.  

In one such case, I had the opportunity to prevent the illegal removal of a child from the state of Illinois.  In that case, the opposing party was leaving clues and all sorts of information of her planned move to another state on her myspace page.  Her exact words were quoted in placed in an ex-parte petition for temporary restraining order and the pages were printed out and attached as exhibits to the petition as well.  Lets just say that the opposing party was shocked  when she was served with a court order temporarily restraining her movement with the minor child and the petition that quoted her own words and showed pictures of her own statements. 

Attorneys need to advise their clients about the pitfalls of social networking sites while involved in family law litigation.  Client's should inform their attorneys that they have these sites and they frequent these sites. A question about social networking should always appear in an initial client questionnaire.

It is important to advise the client to limit their presence on these sites and remove possibly objectionable and damaging material.  It is also advisable for attorneys to have the passwords to these sites to monitor their client's information so that it does not jeopardize their rights and cause damage to their cases.  

Important points to remember: 

• This is important! Social networking sites are public forums and therefore are sources of public information.  
• Be careful who you accept as a friend on social networking sites.  Limit access to your personal information to only those you trust.  In this day and age it is very difficult to trust someone on the internet.  
• Do not post objectionable pictures.  These are pictures that are sexually suggestive or pictures that place yourself or a child in danger of being harmed. 
• Do not post objectionable comments.  These include comments regarding your state of mind, including that you are depressed or you have thoughts of suicide  Also do not post your feelings of rage and anger towards your spouse, ex-spouse or significant other.  In addition, do not post your thoughts, feelings and emotions pertaining to persons involved in your case, like the judge. 
• Make sure your attorney is aware that you have these sites and make sure your attorney reviews the sites with you to remove objectionable information or information that could be construed in a wrong way. 

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Recently, I had the opportunity to observe a situation that many of my clients have gone through with the births of their children. I went to celebrate the birth of a child with a friend and his girl friend. While I was present, a hospital worker came into my friends hospital room and asked whether he was married to the woman who gave birth to his child. In this case, he was not married to the woman and as such was provided a form known as a Voluntary Acknowledgment of Paternity.

A Voluntary Acknowledgment of Paternity (VAP) is a form provided by the state that essentially creates a legal relationship between father and child when signed.  The significance of signing this document is known as paternity by consent.  If this document is signed then the father waives his right to a DNA test and it also creates an obligation for child support. In addition in Illinois, signing a VAP awards sole custody by default to the mother of the child.

Essentially this document bypasses the court system on the issues of paternity and custody. If the father wants visitation with the child, then he has to petition the court to establish that right.  If the father wants custody, he has to petition the court to modify custody.  Instead of starting out disadvantaged, why not have everything established in court. If you are going to be there for one issue, why not be there for all the issues in your case and start out on an even playing field with the mother of the child. 

In the United States alone, approximately 40% of all births are to unmarried parents. That percentage continues to grow each year. I do not know whether there are any figures on how many VAPs are signed each year to determine paternity administratively. But it happens quite often and quite often the new father has second thoughts.

DO NOT SIGN IT, unless you are absolutely sure you are the father!

Do Not be pressured into a situation that you may later regret. Do Not let your emotions get in the way. If you are not sure, do not sign it. I cannot stress that anymore. Its that simple.

If you have signed it and the emotions of the birth have passed and you have come back to your senses and you realize that you might not be the father of the child, you do have a sixty day grace period, after signing the VAP, to rescind your VAP in Illinois. After sixty days have passed, you are on the hook for the next eighteen years plus the possibility of college.  Think about that for a second!

Challenging a VAP after the expiration of the sixty day period is possible but very difficult.  A VAP may be challenged on the grounds of fraud, duress or material mistake of fact.  The burden of proving this is on the party challenging the VAP.  

In the cases that I have litigated, the Courts have focused in on whether the act of the father signing the VAP was voluntary and whether the father had any doubts about his paternity at the time of signing the VAP.  If he still signed the VAP with those doubts in mind, the court was not inclined to vacate the VAP.  This is because even though he harbored doubts about his paternity, he still committed a voluntary act by signing the document declaring himself to be the father, regardless of whether there were facts that supported a conclusion that a fraud had been committed against the particular father.

Paternity fraud is a serious issue and will be discussed in a later submission.  A recent New York Times Magazine article titled: Who Knew I was Not the Father, by Ruth Padawer, is a great place to get acquainted with this topic. 

In getting back to our topic, of whether to sign the VAP, DO NOT succumb to pressure, threats and emotions. Do Not give in to anyone. BECAUSE: YOU HAVE RIGHTS! You have the right to a DNA test. You also have the right to have a judge resolve all together the issues of paternity, custody, visitation and child support. The best thing to do in this situation is to consult an attorney to discuss your rights so that you can start out on an even playing field.

Important things to remember:

• Signing a VAP is a voluntary act. Do not sign it, therefore do not commit a voluntary act unless you are absolutely sure you are the father of the child.  In an age where DNA tests are now available over the counter, it's best to side with caution and determine with certainty whether the child is yours.
• If you are in Illinois it is best to have a judge oversee your case and resolve the issues of paternity, custody, visitation and child support rather than having some of the issues resolved through one administrative act.  
• Signing a VAP creates a legal relationship by consent of the parties.  
• Signing a VAP waives your right to a DNA test and puts you in a disadvantaged position on the issue of custody.  
• Preferably before the birth of the child, consult a family law attorney to discuss your rights, obligations and options. If the child is already here, consult a family law attorney as soon as possible. 

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