How Is Custody Determined With Unmarried Parents?

Child custody disputes can be emotionally draining during a divorce because both parties typically want to spend as much time with the kids as possible. But how is custody decided in Illinois when the parents are unmarried? Learn more about child custody in this article, and talk to our child custody lawyer in Chicago at Law Office of Fedor Kozlov if you want to discuss your case.

Best Interests Of The Child For Custody Decisions

Whether the parents are married or unmarried, the court will consider the child’s best interests when it makes a custody decision. The judge will review the case facts and weigh multiple factors to determine what is in the child’s best interests. If the father and mother are unmarried, he will need to take steps to assert his fatherly rights.

Legal Custody For Unmarried Parents

When the parents are unmarried in Illinois, the mother has sole physical and legal custody until the father proves paternity. When the child’s mother has sole custody, she can make all significant child welfare decisions. With full legal and physical custody when the parents are unmarried, the mother can decide:

Where the children live
Which schools the children attend
Who will help care for them
What medical care they will receive
Where the child will go on vacation

Even putting the father’s name on the child’s birth certificate does not prove paternity when the parents are unmarried. However, if the father’s name is on the birth certificate and he marries the child’s mother, he becomes the child’s legal parent.

What Rights Do Unmarried Fathers Have?

Illinois law states that parents must be treated in a gender-neutral fashion. This means mothers do not automatically get more rights because they are the mother. The law assumes that both the mother and father are fit to be parents and should receive parenting time unless the child’s best interests are negatively affected.

Fathers’ rights in Illinois include obtaining custody and visitation, but you must first establish paternity. This can be done in the following ways:

Voluntary Acknowledgement of Parentage (VAP): This document can be used when the mother and father agree on the child’s parents. The VAP is legally binding, and the person who signs it is presumed to be the father, even without a DNA test. You have 60 days from signing the document to rescind it if you change your mind. If the parents agree, the mother and father can sign the VAP after the child is born.
Court order: You also can go to court to determine parentage, which typically requires a DNA test when the parents disagree about who the mother or father is. This is a time-consuming, complex process that an experienced child custody attorney should handle.
Department of Healthcare and Family Services (DHFS) hearing: If you are receiving assistance and need to prove paternity, a DHFS hearing is an option. The hearing will determine parentage and child support issues but not parenting or custody time.

Why A VAP Can Be So Important

The VAP is the most convenient and efficient means to prove the father-child relationship when the parents are unmarried. This evidence is helpful if the father wants to enforce his parental rights if the couple splits. With the help of this document, various fathers’ rights are protected, such as the right to:

Keep a relationship with the child: When paternity is established with the VAP, the father can petition for parenting time in court.
Make joint decisions for the child: This provides the father the right to petition the family court to mandate the mother to make joint decisions about education, religion, medical care, and other vital matters.
Stop adoption: If the unmarried mother intends to give the child up for adoption, the father with proof of paternity can stop the adoption and protect his rights.
Stop the child being removed: Having a VAP can also be used to file an emergency petition to stop the mother from taking the child from the state or country.

The VAP also has significant benefits for the child and mother. For the child, it is essential to know who their father is, from emotional and practical standpoints. When the child knows the father, this maintains their rights to various benefits, including Social Security. It also can give them critical medical and genetic information regarding healthcare. The mother often needs to prove paternity to preserve the child’s access to financial benefits and obtain child support.

Parenting Time And Parenting Responsibility

Assuming the father has proved parentage of the child, the next step is to understand where the child will primarily live. In 2016, the Illinois Marriage and Dissolution of Marriage Act removed the word ‘custody’ from the law. While this is confusing to some, the major issues decided regarding children of the marriage involve these concepts:

Parenting time: The time the mother and father spend with the child.
Parenting responsibility: The responsibilities for making significant decisions that the mother and father have. The primary decision areas are healthcare, education, extracurricular activities, and religious upbringing.

The family court will examine the following factors to determine decision-making:

The wishes of the child
The needs of the child
The wishes of the mother and father
Any earlier agreements concerning decision-making
Each parent’s earlier involvement in making decisions about the child
The mental and physical health of all parties
The child’s ability to acclimate to a new living situation
The ability of the mother and father to make decisions in the best interests of the child
How far the parents live from each other
Any abuse that has occurred to the child

For allocating parenting time between the parents, the family court will balance the following factors, with the child’s best interests being the guiding principle:

Each parent’s wishes for parenting time.
The wishes of the child
The amount of time each party spent taking care of the child during the marriage
How the child is adjusting to their community and home life.
The mental and physical health of all parties.
The child’s needs
How far the parents live apart from each other
Whether restricting one of the parent’s time with the child is appropriate
Each party’s willingness to put the child’s needs ahead of their own
The ability of the parties to encourage a good relationship between the child and the other parent

Joint Custody

In Illinois, joint custody means that parents share parenting time and decision-making 50/50. If the judge makes a joint custody decision, it is presumed that each party can agree and communicate effectively with the other to raise the child. For the most part, Illinois courts do not typically grant sole custody unless the child was neglected or abused during the marriage. Or, the court finds that a parent’s actions during the marriage endangered the child’s physical and mental health.

What If There Are Disagreements About Custody?

If the mother and father cannot agree about decision-making and parenting time, the judge will decide on the child’s best interests. In most cases, the court will allocate more parenting time and decision-making to the parent who is more willing and cooperative in working with the other parent.

Determining Child Support When The Parents Are Unmarried

According to Illinois law, unmarried parents are required to use the identical child support calculation as married parents. These requirements are listed in Sections 505 and 505.2 of the Illinois Marriage and Dissolution of Marriage Act. The most significant thing that affects child support is the extent to which one is the non-primary parent. The law states that if each parent has 146+ overnight stays annually with the child, the basic child support obligation is multiplied by 1.5.

More than that quantity is greater than 40% of the nights spent with the child, and the child support calculation reduces the support payment by 50%. However, checking these calculations with a child support calculator online is always wise.

Once the child support court order is established, the parents can pay support directly to each other or have it taken from the payor’s check. The Illinois State Disbursement Unit can accomplish this for a small annual fee. It also keeps a record of every child support payment that is made and received over the child’s life. This record can be beneficial if there is a child support discrepancy later.

If the parents are not married, the family court could order child support payments for a time that is before when the action started. Unmarried parents also can request that child support be ordered from the date the child was born. In many cases, the court will look at the date when the unmarried couple stopped living together as the time when support should commence.

Contact Our Child Custody Lawyer In Chicago

If you think divorce is coming, you should act quickly to get your legal and financial houses in order. The steps mentioned in this article should be taken quickly to ensure the best outcome for your case. If you need help with your divorce or have questions, contact our child custody lawyer in Chicago at Law Office of Fedor Kozlov. He can sit down with you today and discuss your case, so please call (847) 241-1299.