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Who Has Custody When the Parents Never Married?

Side view portrait of father and son shaving together and looking in mirror in home bathroom

Illinois parents who never married have different rights than parents who divorce after a child is born or during pregnancy. Understanding the differences can help ensure that parents take full advantage of their rights as parents, according to DuPage County family law attorney, Denise Erlich.

Side view portrait of father and son shaving together and looking in mirror in home bathroom

While it’s becoming increasingly common for unmarried couples to have children, the legal system still operates on the assumption that a child’s parents are legally wed. As a result, unmarried parents may face a number of challenges when pursuing custody.

Determining Paternity

If an unmarried father isn’t listed on the birth certificate and no voluntary affidavit of paternity exists, this could bring up several challenges regarding paternal rights and responsibilities. To establish paternity in these cases, parents may request that a test is ordered through the court. While establishing paternity is an important first step for unwed dads, doing so does not automatically grant a father regular visitation or joint custody.

In Illinois, the mother is presumed to have legal and physical custody if paternity is not established. Once paternity is established, the mother can pursue financial support on behalf of the child, and the father can pursue parenting rights to include the allocation of parental responsibilities and court-ordered parenting time.

Financial Support

Mothers and legal fathers are obligated to provide financial support for their children in Illinois. This includes providing support payments and helping out with medical insurance and expenses and even college funds. The only way to forfeit the child’ right to financial support from both parents is to terminate parental rights.

Parenting Time

Once paternity has been established, the legal father can pursue his rights to parenting time with the courts. Without a court order, the mother has no legal obligation to allow visitation between the father and the child. After a court order has been established, the mother must comply with the parenting time schedule ordered by the court.

Learning about the specific rules in Illinois regarding the rights of unmarried parents is necessary for establishing custody of a child (now called “allocation of parental responsibilities”) and obtaining visitation (now called “parenting time”).

Uncontested divorce lawyer Denise Erlich is passionate about helping divorcing couples in the greater Chicagoland area transition to their new life as seamlessly as possible. Ms. Erlich patiently guides her clients through every step of the divorce process and provides clients with candid advice about their case and legal options, so they can make informed decisions about their future.

Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association U.S. District Court, Northern District of Illinois
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