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What Rights Do Unwed Fathers Have in Illinois?

Man helping his kid in learning to ride a bicycle

These days, more and more Illinois couples are having children without ever being married to each other. In fact, Illinois ranks 6th highest in the nation for births that occur out of matrimony with more than 36 percent of all children in the state born out of wedlock, and a whopping 82 percent of teen births being out of wedlock.

Man helping his kid in learning to ride a bicycle

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Additionally, an unfortunate 29 percent of Illinois families do not have fathers present in the home, and countless children who were born out of wedlock do not have consistent relationships with their biological fathers. While some individuals might conceive that these statistics are due to the unwillingness of unwed fathers to play an integral role in their children’s lives, in many cases this belief is completely inaccurate.

It is a common misconception for unwed fathers to believe that they have the same rights to their children as biological mothers. The reality, however, is that unwed Illinois fathers do not actually have any rights regarding their children at all until further action is taken. While the determination of motherhood is made the moment a child is born regardless of marital status, and the mother is automatically vested with the rights and responsibilities of parentage without question, unwed fathers may face an uphill battle in order to establish their own rights as parents.

When a non-marital birth occurs in Illinois, the parents have the right to sign a Voluntary Acknowledgement of Parentage (VAP) before the child is even dismissed from the hospital. Unfortunately, however, parents often believe that signing such a document will preserve the father’s legal rights to the child, and this is a misconception that can result in shock and disappointment for unwed fathers in the long run. In actuality,  VAP simply serves as a basis for child support to be initiated and in no way establishes the father’s right to be included in the allocation of parental responsibility (formerly referred to as custody) or parenting time (visitation).

Establishing paternity as early as possible after the birth of a child is vital for unwed fathers who wish to participate in their children’s lives. If paternity is not established through a court order in Illinois, the mother will retain sole custody and an unwed father may actually find himself being liable for child support, yet having no right to visit his child or obtain residential parenting responsibilities.

There are currently three ways that paternity can be established in Illinois.

  • If the man is married to the mother at the time of conception, he is automatically presumed to be the father of the child even if the parents are no longer married at the time of the child’s birth. In cases like this, there is no need for the father to take further action to prove his paternity.
  • If the man is named on the child’s birth certificate as the biological father, the parents have the option of signing a written statement that the mother had the father’s permission to name him as the biological father. Once this is completed, legal paternity is established.
  • Judicial determination is the third way in which a father can establish paternity. If the mother of the child refuses to consent to the paternity of the child, the father must file a paternity action that requests the court to establish paternity through genetic testing.

Unwed Fathers’ Rights After Paternity Has Been Established

Once paternity has been established, an unwed father has the right to file an action to seek scheduled parenting time or to participate in the allocation of parental responsibilities of the child. In some cases, the unwed father may even be able to obtain residential parenting rights. At very least, it is essential for unwed fathers to register with the Illinois Putative Fathers Registry to ensure that they are given proper notice in the event that the mother would decide to pursue adoption or other legal matters pertaining to the child.

Illinois Family Law Lawyer Denise Erlich

An Illinois family law attorney typically sees numerous cases throughout his or her career, however, in which the mother challenges the rights of the unwed father to play an active roll in the child’s life. Even with the establishment of paternity, a dispute about parenting time and the allocation of parental responsibilities can become a long, emotionally draining process. It can sometimes take months for an unwed father to obtain court ordered parenting time or parental responsibility.

Additionally, unwed fathers should remember that if they do not achieve the amount of parenting time or responsibilities they are seeking initially, a final decree isn’t always final. If the mother’s circumstances change, and the unwed father believes that the child is in danger, is living an unstable lifestyle, or is being exposed to drug use, for example, he has the right to petition the court for a modification of parental responsibilities.

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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