If Both Parents Are On The Birth Certificate, But Not Married, Who Has Custody?

Many couples can maintain a healthy, happy, and long-term relationship with a partner without getting married. However, if they decide to split up and there are children involved, they can end up in a contentious situation. As per Illinois law, the mother has sole custody of children until the father establishes paternity (whether they are married or not). This law aims to determine the best interests of the child.

Establishing Paternity in Illinois

While it may seem harsh, Illinois laws regarding parental custody are absolute. Fathers have to establish paternity even if their names are on the birth certificate. This is important since paternity gives the child rights to the following:

  • Their inheritance.
  • Social security benefits from a disabled or deceased parent.
  • Veteran’s benefits.
  • Insurance and health benefits.

In some cases, the child may also be able to acquire medical information.

There are three ways that a father can establish paternity in Illinois:

  1. Via an Administrative Paternity Order which can be done through Child Protective Services.
  2. By filling out and submitting a Voluntary Acknowledgement of Paternity (VAP) form. Both parents have to fill out and sign the form, and it has to be filed with the Department of Healthcare and Family Services.
  3. By establishing an Order of Paternity via the court.

Important note: The best and most convenient way to establish paternity is to complete the VAP form at the hospital when the child is born. It is available in most hospitals, and the staff will help you fill it. The form can be completed and submitted at a later date as well. Besides hospitals, you can also get the form at the local Child Support Office, the state or local Registrar’s office, and any County Clerk’s office.

Unmarried parents must also decide which one will claim the child on taxes. If one of them is receiving child support, they cannot claim the support as income, and the payee cannot deduct that support from their taxes either.

Only legal parents are given priority. If your name is not on the birth certificate and you have not established paternity, you cannot make any legal decisions about the child. In this case, the best course of action would be to adopt the child and become a legal parent.

To ensure the child is cared for post-split, the custodial parent has the right to receive financial aid from the non-custodial parent, even if they are unmarried. On the other hand, if a stepparent adopts the child, the other biological parent or father with established paternity doesn’t have to make payments.

The Uniform Child Custody Jurisdiction and Enforcement Act states that the child’s home state has jurisdiction in custody matters. If the child lives in a state other than Illinois for more than six months, their home state has no authority over the custody case.

What Unmarried Couples Can Do To Establish Child Custody

If the father has established paternity and thus has rights to his children, they can fight for custody or go for joint custody. If they cannot do that, the court can order mediation, and if disagreements persist, the court will decide for you.

Family courts in Illinois differentiate between physical and legal custody. The former allows the parent to make decisions on behalf of the child, and the latter pertains to the parent who has the child daily.

Here are the steps in detail that child custody lawyers in Schaumburg can help you with:

Dividing Custody

The couple may try to make a custody plan themselves without the court’s intervention. Make sure you have competent child custody lawyers in Schaumburg in your corner for this step. If you agree with the other parent, create a combined plan detailing the child’s legal and physical custody arrangements.

Custody can be modified if circumstances change for the parents. Certain requirements have to be fulfilled to make changes in physical custody arrangements. The parent has to prove a major change in circumstances for the court to modify the custody.

Legal custody cannot be changed until two years from the first order. The court will only change the order if the parent proves that the current environment is detrimental to the child’s mental, physical, and moral health.


If parents cannot agree on a parenting plan, they must attend a court mediation to settle their differences. The court appoints a certified mediator as an intermediary attorney. Most are therapists and social workers who are experienced in dealing with contentious custody cases. As neutral parties, they help parents correspond with one another to come to an amicable agreement.

The Court’s Decision

In case negotiations fall through during mediation, the court gets involved. Illinois courts base their decision on appropriate laws and statutes, but the stages can differ from one case to the other. The court may order a home investigation, a Guardian Ad Litem (GAL) investigation, and ask for testimonials in some cases. To ensure you can get through each stage without faltering, get help from professional child custody lawyers in Schaumburg today.

Ensuring you have skilled legal representation at this point is crucial. These stages are far from simple and filled with complex jargon and contradictory laws. In each stage of this arrangement, the parties work to convince court officials to make a favorable ruling for them, and each has diverse arguments that may swing the case in their favor. However, keep in mind that all arguments should be based on the child’s best interests, not yours.

The court usually starts on the presumption that the child needs to have both parents in their life and both should have equal access. The parenting plan and custody are determined by standard applications of what is best for the child. The court will also consider where you and your ex live during deliberations if you are unmarried. The court will want to ensure that the child doesn’t face disruptions during this tumultuous experience.

If the father lives far from the mother, it could affect the parenting plan schedule. This doesn’t mean that the father will not be allowed to spend time with the child. The court doesn’t want the child to travel far for visits if their school schedule is disrupted. So the closer the parents live with one another, the easier it will be for the child to transition between homes.

The Parenting Plan

Whether you are married or unmarried, you will still need to establish a parenting plan with your ex if you want to spend time with your children. This has to be done within 120 days after the split or after submitting the petition for child custody. The parenting plan has to be drafted by both parents and submitted to the court.

Even when parenting time is established, the court can award the right of first refusal. If needed, it allows a parent to babysit the child on the other parent’s day. For instance, if the latter needs to attend an important meeting at night, they can ask the former to babysit rather than hire a babysitter.

This right cannot be abused. It is only given if it is in the child’s best interests. If a parent is abusive, the other parent cannot ask them to babysit in good conscience. The court may also set stipulations such as transportation requirements.

Important note: Even if you are not married, both parents have to support their children financially. The court determines the contributions of each parent after evaluating their incomes and responsibilities. The decision may be re-evaluated if one of the parents loses their job or faces a financial crisis that puts child care in jeopardy. You can ask the court to order the other parent to contribute if they refuse to.

Contact The Law Office Of Fedor Kozlov For A Consultation Today

Divorce and child custody battles can put you through the wringer. Having an attorney who can be a source of strength and critical legal advice is mandatory. If you are unmarried, you will have to pass through several challenging hoops if you want to ensure you can see your children and can be part of their lives. Strong legal representation from experienced child custody lawyers in Schaumburg from the Law Office of Fedor Kozlov, P.C can turn the tide in your favor and even ensure you remain in your child’s life.

We are a group of hard-working and ardent attorneys who have years of experience providing custom solutions for child custody cases. Whether you are married to your partner or not, you have the right to remain in your children’s lives. We have helped thousands of families reach agreements that ensure a stable and happy life post-split and can help you too.

Our child custody attorneys are proficient in family laws that govern custody cases, so we can provide relevant dispute resolutions that can work for you. We have helped many parents resolve conflicts with a friendly and uncomplicated approach, but we are not opposed to aggressive representation. If the other party refuses to cooperate, we are not afraid to go to trial. Get in touch with us for a completely confidential consultation by dialing (847) 241-1299.

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