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Who Has Custody of a Child When the Parents Are Not Married?

good father and daughter

To determine who has custody of a child when the parents are not married in Illinois, the courts will begin by considering whether parentage was established. For biological mothers who are unmarried, parentage is automatically established. In most cases, the mother will retain sole legal and residential custody until the father establishes parentage. Unmarried fathers often hire a family law attorney to help them prove paternity, so they can enjoy parenting rights and responsibilities. 

good father and daughter

What Is Child Custody?

In Illinois, child custody comprises both legal and residential custody. While legal custody refers to parents’ ability to make important decisions around schooling, religion, and other important aspects of the children’s lives, residential custody involves where the children will live or spend the majority of their time. Residential custody has a significant impact on who will need to pay child support.

Based on the nature of their relationship and parenting abilities, parents may share custody of their children, or a single parent may be awarded sole custody. While sharing residential custody is often the ideal solution for both parents and their children, the courts may not award shared residential custody if one of the parents may create an unhealthy environment for their children.

How Child Custody Works for Unmarried Parents

Marital status plays a significant role in the way child custody works in Illinois. According to Illinois law, parents have equal rights to the child as long as the child was born during their marriage. However, if the parents are unmarried, the mother will automatically gain sole custody of the child until the father establishes paternity. 

While establishing parentage is easy for biological mothers and married fathers, it’s often more challenging for unmarried fathers. The court assumes married fathers are the legal fathers of their children if their wife gives birth while the couple is married, eliminating the need to establish paternity. Unmarried fathers, on the other hand, will need to clearly establish paternity to prove that they are the child’s legal father.

Unwed fathers, who want to be part of their children’s lives often ask “ What rights do unwed fathers have in Illinois? “ It is common for unmarried fathers to mistakenly assume that they automatically have the same rights to their children as biological mothers. Until parentage is established, however, unwed fathers do not have any rights to their children. Several options are available that may help unmarried dad’s prove paternity.

Voluntary Acknowledgement of Paternity (VAP)

In some cases, unwed fathers may be able to obtain and complete a VAP form to establish paternity, in accordance with the Illinois Department of Public Health. For the form to be effective, it must have both parents’ signatures. If possible, it’s best to sign this form at the time of the child’s birth.

It’s important to keep in mind that a VAP merely helps begin the process of paying child support. It does not establish the father’s rights regarding visitation and other types of parental responsibilities. 

Establishing Paternity

To obtain legal and/or residential custody of a child in Illinois, unmarried fathers will need to establish paternity. If dad is unable to prove that he is the father of the children involved in custody disputes, the mother will usually maintain sole custody of the children. In these instances, unmarried fathers may still need to make child support payments, however.. 

There are three main methods of establishing paternity in Illinois. These include:

If the Man Is Married to the Child’s Mother at the Time of Conception

In cases where the man was married to the mother when the child was conceived, the court will automatically assume that the man is the child’s biological and legal father. Even if the couple separated or divorced once the child was born, the court will still assume the man is the legal father. 

If the Child’s Birth Certificate Names the Man as the Biological Father

Who has custody when the parents never married? If an unmarried father’s name appears on the child’s birth certificate as the biological father, paternity may be established if both parents sign a statement declaring that the mother got the man’s permission prior to naming him on the certificate.

If the Man Can Establish Paternity Through Genetic Testing

Another way an unwed father can establish paternity is through genetic testing. Individuals may choose this option if the mother refuses to help establish paternity. The father may request genetic testing from the court to prove that he is the child’s biological father.

The Main Types of Child Custody Arrangements

When determining custody, there are several main types of custody arrangements that the courts may award, depending on the nature of the relationship and case. To help secure the best arrangement, parents may want to consult a child custody lawyer, who may factor in the parents’ goals, and the needs and wants of the children involved.

The following are some of the custody arrangements that the courts may award.

Temporary Custody

Sometimes, a family law attorney will recommend that a parent file a request for temporary custody when completing the paperwork for a divorce. If the court awards temporary custody, the child will be able to live with the parent while the court decides on a more long-term arrangement.

Sole Custody

The court may decide to award sole physical custody of the children to one parent if the other parent is determined to be unfit. In addition to physical custody, judges may award sole legal custody, which would make the custodial parent solely responsible for making critical decisions in the child’s life.

Shared Physical Custody

Judges in Illinois generally favor shared physical custody between both parents. A shared custody arrangement would allow the children to spend a minimum of 35% of their time with each parent. The child may live with one parent while the other has the chance to regularly visit the child. Alternatively, the child may live with each parent on certain days or months, according to a set schedule.

Joint Legal Custody

If parents share legal custody of a child, they will be able to make important decisions around the child’s upbringing. These could include decisions regarding the child’s education, religious upbringing, healthcare, and other aspects of the child’s life.

Split Custody

If a case involves multiple children, the judge may decide to award split custody. This would entail having one child live with one parent and the other child live with the other parent, as long as this arrangement is in the best interests of each child. 

The specific arrangement that the courts decide to award will depend on numerous circumstances and the child’s best interests. If a child is old enough and exhibits the desire to spend more time or live with one parent over the other, this could also factor into the court’s decision.

Parenting Time and Parental Responsibilities When Parents Are Not Married

In Illinois, the law requires the courts to treat parents in a gender-neutral manner once parentage is established. Although it’s often more challenging for unmarried fathers to seek custody of a child, they still have options available if they can establish paternity. Based on the nature of the relationship between both parents and their children, and the children’s best interests, the court may award parenting time and parental responsibilities to unwed fathers, biological mothers, or both.

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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