How Custody of Children Born to Unwed Parents Is Determined in Family Law
In today’s society, it’s increasingly common for children to be born to parents who aren’t legally married. According to the Centers for Disease Control and Prevention (CDC), more than 40% of births in the United States occur outside of marriage. While societal norms have evolved, family law often lags behind, creating unique challenges for unmarried parents.
At Smolka Law Group in Palantine, Illinois, we’ve worked with many clients addressing the emotional and legal intricacies of child custody when the parents were never married. Here, we offer a comprehensive overview of how custody is determined for children born to unwed parents, what legal principles are at play, and what steps both mothers and fathers can take.
The Basics of Legal Custody vs. Physical Custody
Before looking into how child custody is determined, it’s important to distinguish between the different types of custody. Legal child custody refers to the right to make major decisions about the child’s life, such as education, healthcare, religion, and general welfare. Physical child custody refers to where the child lives and who provides for their day-to-day care.
In some cases, courts may award joint child custody (shared between parents) or sole child custody (awarded to one parent) for both legal and physical custody. These decisions are always made in the best interests of the child. When you work with us at Smolka Law Group, we’ll help you understand what type of custody might be expected in your situation.
The Custody Rights of Unmarried Mothers in Illinois
In Illinois, when a child is born to unmarried parents, the mother is automatically granted full legal and physical custody of the child. This means she has sole authority over all decisions related to the child, unless and until the father takes legal steps to establish his parental rights.
While this may seem unfair to fathers, it’s rooted in the fact that maternity is easily verifiable (the mother gives birth), while paternity must be legally established. If you have questions about how this affects your case, it’s important to speak with a qualified family law attorney. At Smolka Law Group, our attorneys are ready to help you with your child custody case.
The Process of Establishing Paternity in Illinois
For a father to have any legal rights to a child born outside of marriage in Illinois, he must establish paternity. This isn’t as simple as simpling stating you’re the father of the child. Certain avenues have been set up for legally establishing paternity in the case of a child born to unwed parents. This can be done in one of three ways:
Voluntary Acknowledgment of Paternity (VAP): This is the simplest method, involving a form that can be signed at the hospital at the time of birth or later through the Illinois Department of Healthcare and Family Services. Once signed and filed, the VAP gives the father legal recognition without needing a court hearing.
Administrative Paternity Order: Issued through the Department of Healthcare and Family Services Child Support Services Division, this process may involve DNA testing and does not require court involvement.
Judicial Paternity Order: A court-ordered establishment of paternity, often involving DNA testing. This is usually pursued when one party contests paternity or when the parents disagree about the father’s role.
Until paternity is established through one of these means, the father has no legal right to custody or parenting time - even if he is listed on the birth certificate. This is why working with one of our family law attorneys can be so vital to your case. Establishing paternity is just the first step toward shared custody of your child.
The Next Step After Establishing Paternity
After paternity is legally confirmed, the father gains the right to seek an allocation of parental responsibilities (legal decision-making authority), parenting time (physical time spent with the child), and a formal parenting plan. This leads to the next step in the process for unwed parents establishing custody of their child or children.
Illinois courts no longer presume that one parent is more fit than the other based on gender. Instead, judges evaluate each parent’s capabilities and the child’s needs under the “best interests of the child” standard. This legal standard places the child’s well-being as the priority in custody cases and the arrangements that are decided.
The Creation of a Parenting Plan in Illinois
Once paternity is established and both parents are seeking involvement, they’re encouraged to submit a parenting plan to the court. This plan outlines how the parents will share decision-making and schedule parenting time. A skilled family law attorney can help you create this plan. A typical Illinois parenting plan includes:
A detailed parenting time schedule
How parents will handle holidays, vacations, and school breaks
Methods for resolving disagreements
How future modifications will be addressed
If both parents agree on a parenting plan, it can be approved by the judge and entered as a court order. If they don’t agree, the court will conduct a hearing and make a decision based on the child’s best interests. Again, the best interests of the child are the standard by which this plan will be measured and an agreement reached.
The Steps Taken When Parents Disagree
If there is disagreement over parenting time or responsibilities, the case may be referred to mediation. Mediation is a confidential process in which a neutral third party helps the parents reach a mutual agreement. If mediation fails, the judge will decide the allocation of parental responsibilities based on the evidence presented in court.
The judge may also appoint a guardian ad litem (GAL). A GAL is typically a trained attorney with experience in family law matters. They’ll investigate the family situation by interviewing the parents, child, and other relevant parties. After gathering information, the GAL provides a recommendation to the court regarding what arrangement best serves the child.
The Basics of Child Support for Unmarried Parents
Once paternity is established, the custodial parent can seek child support. In Illinois, child support is calculated based on an “income shares” model, which considers the income of both parents, the number of overnights the child spends with each parent, and any existing support obligations for other children.
Child support is a separate issue from parenting time. A parent cannot withhold parenting time due to unpaid support, and a parent cannot refuse to pay support because they’re not receiving time with the child. Understanding the difference between child support and parenting time is essential when you’re working through a child custody case.
The Importance of a Family Law Attorney in Illinois
Working through child custody issues as an unmarried parent can be overwhelming, especially when emotions are high and the legal system is intricate. At Smolka Law Group, we have extensive experience in these types of cases. Our role is to:
Help fathers establish paternity and petition for parenting time
Assist mothers in securing support and establishing responsible co-parenting
Draft clear, enforceable parenting plans
Represent clients in mediation or court proceedings
Pursue or defend modifications to child custody arrangements
Stay compliant with Illinois statutes and local court rules
More importantly, we advocate for the best interests of the child while protecting our client’s rights as a parent. Whether you’re a mother or a father, you can have legal representation that understands both the law and the sensitive nature of family matters. This is why choosing a law firm with experience is so important for your case.
Speak With a Family Law Attorney Today
For unwed parents in Illinois, determining child custody and parenting time isn’t as straightforward as it is in divorce proceedings. At Smolka Law Group, we practice family law in Palantine, Illinois, and understand the intricacies involved. We strongly encourage all unmarried parents to formalize their responsibilities through the court to protect their legal standing and provide their child with a foundation for their upbringing. Contact us today to begin working with our firm.
