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Illinois Child Custody Laws And Unmarried Parents In 2021

A generation ago, most children grew up in “traditional” families. They lived with a married father and mother who had never been married to anyone else, along with their pure biological siblings. Today, for the first time ever, less than half of American children live in such environments. Most kids live in “nontraditional” households, usually with stepparents, a single parent, adoptive parents, or grandparents.

Equal treatment is one of the cornerstones of American law. That goal might or might not always be realized, but that’s the subject of another blog. For family law purposes, this principle is firmly established in Illinois. Married and unmarried parents have the same legal rights and obligations. Enforcing and imposing these rights and obligations is just a little more complex.

So, a Naperville child custody lawyer is a critical partner in this process. Only an experienced attorney can give you solid advice about your legal options. Furthermore, a lawyer diligently stands up for your legal and financial rights, both in the courtroom and at a negotiating table.

Paternity Matters

Marriage automatically creates a legal parent-child relationship. So, unmarried parents in Illinois must take an additional step. A court cannot issue binding orders unless there is a legal relationship in this area. There are two basic approaches.

Biological Paternity

If your name is on a child’s birth certificate, there is usually an administrative parent-child relationship. A bureaucrat may impose a child support obligation. But that’s about it. Only a paternity action creates a legal parent-child relationship.

A name on a birth certificate does create a presumption of paternity. Therefore, a Naperville child custody lawyer must only carry the ball a few more yards and over the goal line. Usually, either the mother’s agreement or a paternity test provides the fuel necessary for this final effort.

Generally, when faced with a problem, attorneys usually first try the direct and inexpensive way. If this method doesn’t work, other options are almost always available.

The quick and easy path in a paternity action is the mother’s agreement. Most mothers readily agree to paternity actions. They know that the next step involves financial obligations and a set parenting time schedule. These two things usually benefit everyone involved. More on that below.

If the mother does not agree, most DuPage County judges order DNA swab tests. These tests are completely non-invasive. Admittedly, young children, and sometimes grown-ups as well, often have a hard time sitting still while a technician takes a saliva swab. But it will be over soon, and you might even get a lollipop if you behave.

Furthermore, DNA tests are almost absolutely conclusive. Usually, the result is either a 0 percent chance of a match or a 98.99 percent probability of a match.

Paternity actions have a number of advantages for fathers. Without a court order, fathers have essentially no legal rights toward their children. The mother might even be able to place the child for adoption without notifying the father. A court order means a set visitation schedule and legal rights in black and white. Furthermore, only legal parents have a path to full custody, at least in most cases.

Legal Adoption

As mentioned, the face of the American family has changed significantly. Legal adoption has changed significantly over the last generation as well.

In the before times, adoption agencies handled almost all these matters. Agencies still handle a significant number of adoptions. A Naperville child custody lawyer still plays an important role in such matters. Without legal representation, prospective parents often get buried in paperwork and/or lost in the shuffle.

Private adoptions were almost unheard of before the 1990s. Today, they are rather common. Some families even opt for open private adoptions. These children know the identity of their biological parents almost right from the start. Open adoptions are obviously only a good idea in some cases.

Attorneys can give families solid advice in this area. More importantly, attorneys help biological and prospective parents navigate the complicated Illinois laws in this area. Financial reimbursement is a good example. Prospective parents may pay some of the biological mother’s medical bills and living expenses. But strict caps apply.

Stepparent adoptions work a bit differently. Most Will County judges waive the social study, along with some other requirements, in these cases. So, from this perspective, the process is more streamlined.

However, children can only have two parents. So, a stepparent adoption means the termination of a biological parent’s legal rights. If the to-be-terminated parent is an absentee parent, as is usually the case, termination is essentially a formality. If the to-be-terminated parent still has an active relationship with the child, the matter is much more delicate.

Some parents refuse to voluntarily terminate their rights in these cases. Some judges refuse to pull the trigger as well, reasoning that termination is not in the child’s best interests. A name change is usually a fallback. This legal proceeding does not have nearly the same effect as an adoption. But at least everyone in the same house has the same last name.

Parenting Time Division

Illinois has a co-parenting law. This law presumes that children benefit from consistent and meaningful contact with both parents. This presumption obviously doesn’t apply in all cases.

Initial Determinations

Usually, judges look at a number of factors in this area. Some of these factors, which all have about equal weight, include:

  • Parent Preference: Some parents directly express a preference. They are perfectly okay with being weekend parents. Other times, the designation is indirect. Parents who have not shown much interest in their children usually get limited visitation rights, at least at first.
  • Child’s Current Environment: There’s an old saying in the law that the devil you know is better than the devil you don’t know. In this context, if the current informal timeshare agreement is working, even if it’s not working perfectly, most judges would rather keep the status quo than roll the dice on a new plan.
  • Child’s Preference: In Illinois, judges have a great deal of discretion in this area. A judge may accept a 10-year-old’s preference and reject a 17-year-old’s preference. In any case, the judge always has the final say on whether the request is in the child’s best interests.

Family violence is in a category of its own. Most child custody factors can go either way, but this one is usually a deal-breaker. That’s especially true if the child was a victim or witness. In addition to limited visitation, judges usually impose other requirements, such as anger management or other counseling.

Like most paternity matters, most parenting time determinations settle out of court. Except in extreme cases, the only people who usually benefit from emotional trials are the lawyers.

Subsequent Modifications

Emotional circumstances change frequently. For example, most older children feel closer to their fathers, and most younger children feel closer to their mothers. If the change is material and unanticipated, a modification might be in order. Let’s break these things down.

A material change usually involves the number of overnights. If this figure changes by about 10 percent either way, legal modification is usually a good idea. As for unanticipated, age alone usually is insufficient. Children always get older. Instead, this area usually involves a stepparent or stepsibling that the child simply doesn’t get along with or represents a physical or emotional health hazard.

Move-away modifications happen a lot as well. The law in this area is complex. For example, there’s a difference between moving and relocating. Not all moves require court approval. But most do. Judges usually approve these moves if they are in the best interests of the children. The best interests of the parents don’t count.

Always have a Naperville child custody lawyer put any of these changes in writing. Informal side-agreements are not enforceable in court. So, if one parent unilaterally wants to go back to the way things were before, the other parent has no recourse.

Child Support

Normally, these matters are rather straightforward. The child support guidelines are presumptively reasonable in most cases. However, some parents make too much money and some children have special needs.

Initial Determinations

Illinois is an income share state. So, the child support guidelines take a number of factors into account, so the children have the same standard of living they would have had if their parents were married. Some major factors include the number and age of the children, the combined income of both parents, and the parenting timeshare arrangement.

In many states, the child support obligation ends when children turn 18. But in Illinois, the obligation could last until the child graduates from college. These matters are quite complex. For example, obligors have a duty to help with transportation expenses. That could mean two bus tickets home once a semester or a new car with a gas/maintenance allowance.

Child support payments must be made as prescribed in the order. Obligors receive no credit for informal payments like Paypal transfers to the mother or a child’s allowance.

Subsequent Modifications

Changed financial circumstances could warrant a child support increase or decrease. State law usually presumes that a 10 percent change justifies legal modification. If obligors ask for a decrease, they must have clean hands. Obligors cannot quit high-paying jobs just so they can lower their child support obligations.

Changed emotional circumstances could also warrant legal modification. The more overnights a child spends with an obligor, the lower the obligor’s child support payments to the other parent should be.

Contact a Dedicated Will County Attorney

Unmarried parents have legal and financial rights in Illinois. For a free consultation with an experienced Naperville child custody lawyer, contact Keller Legal Services. After-hours and virtual appointments are available.