The Legal Rights of Unwed Parents: Custody and Visitation Options Explained
Unwed parents often face unique challenges when it comes to protecting their parental rights. While married parents automatically share legal rights and responsibilities over their children, the process can be more difficult for unmarried parents. Understanding custody and visitation laws is crucial for unwed parents who want to be actively involved in their children’s lives.
At Smolka Law Group in Palatine, Illinois, our attorneys understand the intricacies of child custody cases involving unwed parents. When you work with us, we’ll help you walk through your custody case from start to finish. Here, we offer a detailed breakdown of the legal rights of unwed parents in Illinois and explain how custody and visitation work under state law.
The Importance of Paternity for Establishing Parental Rights
For unwed parents, the first step in determining custody and visitation rights is establishing paternity. In Illinois, if a child is born to unmarried parents, the mother is automatically recognized as the legal parent. However, the father must take legal action to be recognized. Working with a skilled family law attorney can help you make the case for your parental rights.
At Smolka Law Group, we have worked with many clients establishing paternity for the purpose of seeking parental rights in a child custody case. When you work with us, you can rest assured that we’ll apply that experience and skill to your case to work toward a final determination from the courts that honors your rights as a father with established paternity.
How to Establish Paternity in Illinois
In the state of Illinois, if parents are unwed, the father must prove, or establish, paternity. This must be done through specific pathways designated by the courts. If you’re seeking to establish paternity as an unwed parent, here are the three primary ways of doing so:
Voluntary Acknowledgment of Paternity (VAP):
This is the simplest way for parents to establish paternity when they’re unwed
Both parents sign a VAP form at the hospital after the child’s birth or later through the Illinois Department of Healthcare and Family Services (HFS)
Once signed and filed, this document gives the father legal rights equivalent to those of a married father in the state of Illinois
Administrative Paternity Order:
Issued by the Department of Healthcare and Family Services
This is often used when the parents are not in agreement, and HFS initiates a paternity action
Judicial Paternity Order:
Obtained through the court system
A judge can order genetic testing and, based on the results, establish legal paternity
Without establishing paternity, an unwed father has no legal rights to custody or visitation, regardless of his involvement in the child’s life. Therefore, this legal recognition is essential before pursuing custody or visitation. If you’re seeking to establish paternity in your case, contact our office to speak with one of our attorneys about your options.
Legal Custody vs. Physical Custody in Illinois
Illinois law no longer uses the traditional terms "custody" and "visitation." Instead, it refers to two different terms: “parental responsibilities” (formerly known as legal custody) and “parenting time” (formerly known as physical custody or visitation). These terms offer a better understanding of what is expected of each parent in child custody cases.
Parental Responsibilities
Parental responsibilities include decision-making authority in the areas of education, health care, religion, and extracurricular activities. The court may allocate these responsibilities jointly (shared by both parents) or solely to one parent, depending on the best interests of the child. You can review the court’s decision with one of our attorneys to better understand the terms.
Parenting Time
Parenting time refers to when the child is in the care of a parent. Even if one parent is awarded the majority of parenting time, the other parent usually has a right to regular visitation, unless there are safety concerns. It’s important to distinguish between parenting time and parental responsibilities so that each parent understands what is expected of them.
How Courts Determine Custody and Visitation for Unwed Parents
Illinois courts make all decisions related to parental responsibilities and parenting time based on the best interests of the child. This helps keep the child’s well-being the central focus of the court proceedings and the final determination for custody and visitation. When making a decision, the court will evaluate several factors, including:
The wishes of the parents
The wishes of the child (considering age and maturity)
The child’s relationship with each parent
The child’s adjustment to home, school, and community
The mental and physical health of all parties
The ability of the parents to cooperate and make joint decisions
The level of involvement of each parent in past decision-making
Any history of violence or abuse
Unwed parents are not treated differently from married parents in terms of their rights once paternity is established. The court won’t favor the mother or father based solely on gender or marital status. This is part of the reason it’s especially important for unwed fathers to establish paternity early on before seeking custody of their child or children.
Common Child Custody and Visitation Arrangements
There is no one-size-fits-all child custody arrangement in Illinois. An experienced lawyer is necessary to help understand the process and the court’s final determination. The court tailors parenting plans to the specific circumstances of each case. Even so, there are some common scenarios that come up frequently in the courts final decisions, such as:
Shared Parental Responsibilities and Parenting Time
In cases where both parents are capable and involved, the court may award joint decision-making authority and a parenting schedule that allows the child to spend significant time with both parents. The court will take into consideration whether this is the most appropriate option for the child based on the factors mentioned previously.
Primary Residential Parent with Visitation
Sometimes, one parent becomes the primary residential parent, meaning the child lives with them most of the time. The other parent receives scheduled parenting time, such as weekends, holidays, and summer breaks. One of our family law attorneys can review your case and help you understand your responsibilities if this is the determination of the court.
Supervised Visitation
If there are concerns about a parent’s behavior, such as substance abuse, mental illness, or past abuse, the court may allow only supervised visitation. This makes sure of the child’s safety while preserving the parent-child relationship. Again, the best interests of the child are always the determining factor the court uses when deciding on custody cases.
What Happens if the Parents Live in Different States?
Interstate child custody and visitation disputes can be complicated. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) helps determine which state has jurisdiction in child custody cases. Generally, the child’s “home state” (where the child has lived for the past six months) has the authority to decide child custody matters.
Contact Our Family Law Attorneys Today
Whether you're a mother seeking to establish boundaries or a father fighting for visitation, knowing your rights as an unwed parent under Illinois law is essential. Our family law attorneys at Smolka Law Group serve clients in Palatine, Illinois. We can help you walk through your child custody case and understand the final determination of the court. Contact us today to begin working together on your case.
