Historically, mothers have taken on most of the responsibility for raising children. This has been reflected in child custody cases, where mothers are more often awarded primary or sole custody than fathers. Indeed, according to one report from the United States Census, only about 1 out of every 6 custodial parents are fathers.
So does this mean that if you are a father, the legal deck is stacked against you in a custody dispute? Not necessarily. Officially, Illinois law is gender- and parent-neutral when it comes to custody decisions.
The primary objective of the law is to identify and protect the “best interests of the child,” not to reinforce traditional gender roles. That said, fathers still need to be aware of how the law works in this area and what potential obstacles they may face when seeking custody. These are some of the reasons it makes sense to consult an experienced fathers’ rights attorney.
The first thing you need to know regarding fathers’ rights is that Illinois law no longer refers to “custody” of minor children. Instead, the law calls it the “allocation of parental responsibilities.” This incorporates both “parenting time”–what used to be known as visitation rights–as well as the exercise of “significant decision-making responsibilities with respect to a child,” or what we traditionally associate with custody rights.
Illinois courts have broad discretion to decide both issues by applying the “best interest of the child” standard. This means a judge is not supposed to make an allocation decision based on historic presumptions about who should parent a child–i.e., automatically favoring the mother over the father.
At the same time, if the mother of your child has exercised primary caregiving and decision-making authority with respect to the child, the court can certainly take that into account.
To put it another way, while the law does not start with the presumption that one parent is more fit than the other, it also does not require the court to allocate parenting time or decision-making responsibilities equally, at least when doing so would harm the child.
So we keep referring to the “best interests of the child” as the legal standard in custody cases. What does that really mean? There is no hard-and-fast rule. Every child and family situation is obviously unique. Illinois directs a judge to consider and weigh “all relevant factors” when deciding what is actually in a child’s best interests. Some examples of relevant factors include:
Again, this is not an exclusive list. An Illinois judge is allowed to consider any factor they consider “relevant” when making a decision regarding the allocation of parental responsibilities. But these factors should not include a preexisting bias towards mothers over fathers when it comes to custody decisions.
Based on the specific factors described above, however, here are a few things you need to think about as a father seeking parenting time or decision-making authority for your child:
In an ideal scenario, you should try and cooperate with the mother to negotiate a “parenting plan” that both of you can live with. By law, when a petition is filed to have the court allocate parental responsibilities, each parent must file a parenting plan within 120 days. If the parents agree, they can jointly file a single plan.
A parenting plan is basically a proposed allocation of parental responsibilities. The judge is not required to accept a parenting plan at face value, even when the parents agree on all of the substantive terms. The court is still bound to consider the proposed plan in accordance with the best interests of the child. But obviously, you can go a long way towards convincing the judge if you and the mother are able to present a joint proposal.
A parenting plan basically needs to include provisions on where the child will live, how much time each parent will spend with the child, how the child will be transported from one parent’s home to the other, and how each parent will access information and records related to their child’s health and education.
If you and the mother are unable to negotiate a joint parenting plan, the court is likely to order mediation. A mediator is a neutral third party who will listen to each side and attempt to facilitate–but not impose–an agreement. If mediation proves unsuccessful, then the court will appoint an outside attorney–known as a guardian ad litem–to conduct an independent investigation on behalf of the child and report back to the court.
The judge will consider the guardian’s report as well as your wishes before making a final decision allocating parental responsibilities.
Most disputes involving the allocation of parental responsibilities arise in the context of divorce. Under Illinois law, filing a petition for divorce automatically invokes a court’s jurisdiction to allocate parental responsibilities when there are minor children. But divorce is not the only context where custody disputes may occur.
If you are an unmarried father, you have the right to file a petition seeking allocation of parental responsibilities. Note that you do not automatically acquire any such rights just because you are the father. You still need to go to court, filing a parenting plan, and demonstrate that granting you custody or visitation rights is in your child’s best interests.
You may also need to separately establish your paternity over the child. There are a few different ways to do this in Illinois. The first and most obvious is to marry the mother, either before or after the child is born. That by itself creates a legal presumption of paternity. You and the mother can also sign a Voluntary Acknowledgment of Paternity form.
This is often done at the hospital just after the child is born and allows you to be listed as the father on the birth certificate. If the mother disputes you are the child’s father, then you will need to file a petition in court to establish paternity.
Another question that sometimes comes up is, “Can a step-father seek custody rights over a step-child?” The short answer is yes. Illinois law does provide a mechanism for step-parents to file a petition seeking parental responsibility for a minor step-child. But the step-father must meet all of the following requirements first:
As a father, you have the right to seek an active role in your child’s life. The law does not assume that you are a less-capable parent just because of your gender. At the same time, you need to understand that the law is there to protect your child’s best interests, which may conflict with your own wishes.
That is why it is critical to work with an experienced Naperville fathers’ rights lawyer who can guide you through the process and zealously represent your interests. Contact Keller Legal Services today to schedule an initial consultation with a member of our child custody team.