specially concurring:
The two-year statute of limitations on actions to declare the nonexistence of a parent and child relationship (750 ILCS 45/8(a)(3) (West 1996)) serves an important purpose. It is wrong to make a child a part of a family unit and pass over substantial concerns regarding the child’s paternity only to raise them years later in an attempt to avoid child support. In re Marriage of O’Brien, 247 Ill. App. 3d 745, 750, 617 N.E.2d 873, 876 (1993). The two-year statute prevents such attempts.
It is somewhat surprising that Roger, who had developed a father-child relationship with A.A. over a 10-year period, would abandon that relationship because of his (legitimate) concern with the conduct of Colleen. Nevertheless, that is his right, if he brings his nonexistence of paternity action within “2 years after [he], obtains knowledge of relevant facts.” 750 ILCS 45/8(a)(3) (West 1996). I agree that Roger lacked knowledge of “relevant facts” in this unusual case, even though he knew at all times that he was not the father of A.A. Even if it were possible to show Roger’s earlier knowledge of those relevant facts, the guardian ad litem for the children has apparently concluded that it is not worth doing so, and concluded that it is best that Roger be out of the picture.
I agree with Arnold that a mother cannot file a paternity action against one man as a device to establish the nonpaternity of the presumed father, but that is not the situation we have here. Before Colleen filed her paternity action against Arnold, Roger had already filed a nonexistence action, his petition for dissolution of marriage in which he denied paternity. It is true that the two-year statute of limitations for nonexistence of paternity should not be evaded by devices such as attempting to bring an existence action “on behalf of a child.” 750 ILCS 45/8(a)(1) (West 1996). Courts have rejected the idea that an action that “[sought] to deprive the child of the only father he has known” could be considered brought on behalf of the child. In re Marriage of Ingram, 176 Ill. App. 3d 413, 418, 531 N.E.2d 97, 100 (1988); see In re A.K., 250 Ill. App. 3d 981, 994-95, 620 N.E.2d 572, 581-82 (1993) (Cook, J., dissenting); see also 750 ILCS 45/7(b) (West 1996) (after presumptions of paternity rebutted, paternity of another may be shown in the same action). The paternity action against Arnold here did not seek to deprive A.A. of the only father he had known; Roger’s actions in the dissolution case had already done that.
Arnold is not a proper party to an action questioning Roger’s paternity. In re Marriage of Allen, 265 Ill. App. 3d 208, 212, 638 N.E.2d 340, 344 (1994). It may nevertheless be useful to allow Arnold to question whether the relationship between A.A. and Roger could be attacked. Someone should certainly address that issue. It is difficult, however, to give much weight to Arnold’s argument when it is not based on concern for the welfare of A.A., but instead is made to advance Arnold’s argument that he should not have to pay child support for A.A. The argument would be much more convincing if it were made by the guardian ad litem.