Questions or concerns about parents’ rights in Illinois often arise in divorce cases involving minor children from the marriage. Yet it is important to know parents have rights – even if they were never married, and those rights are not separate and distinct from the rights of married parents who are getting divorced.
To be sure, unmarried parents’ rights in Illinois, as long as the parent is established as the legal parent of the child, will be the same as the rights of a married parent. Yet the question of unmarried parents’ rights often arises in cases where unmarried parents have been in a long-term relationship and are now making the decision to separate.
It also occurs in situations where one parent who has been out of the picture for quite some time wants to exercise his or her rights. In addition, it may apply when an unmarried parent needs to seek child support from the other parent who has been absent.
No matter what kind of situation you are in, our family law attorneys in Naperville and Bolingbrook, Illinois can evaluate your case and discuss your options. This will give you peace of mind to resolve any issues or concerns you are facing in relation to unmarried parents’ rights and responsibilities under Illinois law.
Parental Rights Apply Generally Even If Parents Are Not Married
Generally speaking, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) does not distinguish between the rights of married and unmarried parents in terms of a parent’s ability to enjoy the rights and responsibilities of parenthood.
To be sure, whether or not parents are legally married, as long as they are the lawfully recognized parent of the child (and we will explain more about this shortly), they will have the same rights as parents who were married at the time of having children, or parents who are married and are filing for divorce.
However, unmarried parents—and fathers in particular—may need to prove paternity or parentage in certain circumstances in order to be eligible for parental rights and responsibilities under Illinois law.
Understand that Child Custody is No Longer Awarded in Illinois Cases
Regardless of whether parents are married or unmarried, it is critical to understand that Illinois courts no longer award child custody to one or both parents. Under older child custody laws in the state, a court would award sole or joint legal custody, and sole or joint physical custody, to one or both parents depending upon the facts of the case.
If you search for information about parental rights for unmarried parents and find information about the shift away from awarding child custody, you need to know that this change in the law applies equally to both married and unmarried parents. To be clear, it is not the case that unmarried parents cannot be awarded child custody, but rather that courts no longer award child custody at all. Rather, under the IMDMA, courts now allocate parental responsibilities.
What are parental responsibilities? According to the IMDMA, parental responsibilities include “both parenting time and significant decision-making responsibilities with respect to a child.” What the law now describes as “significant decision-making responsibilities” is similar to what the law used to describe as legal custody.
Then, what the law used to describe as physical custody and visitation has been replaced with “parenting time,” which is “the time during which a parent is responsible for exercising caretaking functions and non-significant decision-making responsibilities with respect to the child.”
Unmarried parents and married parents alike can be allocated parental responsibilities. This is also true for unmarried parents in which one of the parents legally adopted the child, such as in same-sex relationships. Yet in circumstances where parentage is undetermined, the alleged father will need to prove parentage or paternity in order to be eligible for parental responsibilities.
Establishing Paternity for Unmarried Fathers in Illinois
If a father is not the legal parent of a child, that father will need to establish paternity in order to have parental rights under Illinois law. There are a number of ways to establish paternity under the Illinois Parentage Act, which include the following:
Who needs to establish paternity? The law distinguishes among the following:
In most cases, an alleged father is the person who will need to establish paternity before the court will allocate parental responsibilities and recognize that father’s parental rights.
The Illinois Parentage Act makes clear that it is the public policy of Illinois that the state “recognizes the right of every child to the physical, mental, emotional, and financial support of his or her parents.” As such, the Act underscores, the “parent-child relationship, including support obligations, extends equally to every child and to his or her parent or to each of his or her 2 parents. This is regardless of the legal relationship of the parents, and regardless of whether a parent is a minor.”
This language is important because it underscores that Illinois does not discriminate against parents when they are unmarried or when they do not have any kind of a “legal relationship,” and establishing paternity for an unmarried parent is simply a process that must be completed to ensure that the appropriate father has parental rights under Illinois law.
When Unmarried Parents Decide to Separate
If unmarried parents separate, as long as there is no question about parentage or paternity, the court can go through the process of allocating parental responsibilities (or the parents can allocate parental responsibilities themselves through a parenting plan), just as in a divorce involving minor children.
When unmarried parents separate and the father’s paternity is in question, it will usually be necessary to go through a process of establishing paternity. If a significant amount of time has passed since the child’s birth, it will likely be necessary to have genetic testing performed.
This must be done before the court can recognize the alleged father’s parental rights and allocate parental responsibilities accordingly. Establishing paternity may even be necessary if both parents have developed a parent-child relationship but the father’s parentage is in question.
Allocations of Parental Responsibilities According to the Best Interests of the Child Regardless of Whether Parents Are Married
Regardless of whether the parents of a child are married, the “best interests of the child” standard will govern the allocation of parental responsibilities. When the court allocates parental responsibilities in an allocation judgment, it uses the “best interests” factors as a guide.
Similarly, if parents allocate parental responsibilities through a court-approved parenting plan, the way in which they allocate parental responsibilities will also need to be guided by the “best interests” factors.
There are a wide variety of factors that can be considered in determining what is in the best interests of the child, from the child’s own preference (if the child has the maturity to express a reasoned and independent preference) to the parents’ wishes to the mental and physical health of all the parties involved in the case.
Unmarried Parents’ Rights to Seek Child Support Under Illinois Law
When an unmarried parent is seeking child support, the process of child support enforcement will work as it would for married parents, but an unmarried mother may need to establish paternity before being able to move forward with child support enforcement.
To establish paternity, an unmarried mother will need to ask for a hearing with the Department of Healthcare and Family Services (DHFS). This is so that she can have an Administrative Paternity Order issued for purposes of pursuing child support. Alternatively, she will need to file a petition with the court to establish paternity through genetic testing. Once paternity is established, her parental rights will be the same as those of a married parent.
No Restriction of Parental Responsibilities Because of Unmarried Status
Unmarried parents should also know that the IMDMA does not discriminate against unmarried parents in any capacity when it comes to allocating parental responsibilities. There is no basis for restricting parental responsibilities due to the parents’ legal relationship (or lack thereof).
Contact Our Family Lawyers in Naperville and Bolingbrook, IL
If you have questions about your rights as a parent in Illinois, or if you have concerns about restrictions on parental responsibilities as a result of being unmarried and needing to prove paternity, one of our experienced Naperville and Bolingbrook family law attorneys can speak with you today.
Our firm has years of experience representing parents in a wide variety of family law cases, and we can begin working with you on your case. Contact Keller Legal Services online or call our firm at 630-505-1515 to learn more about the services we provide to families in Illinois.