When an unmarried couple in Illinois have a child together, the rights of each parent is different than if the couple is --- or has been --- married. While more children are from broken homes due to unwed parents and divorces, the rights of parents in each of these situations are different as well. The Illinois General Assembly enacted the Illinois Parentage Act of 1984 to address the rights of parents who are not married.
No Paternity Established
If there is no paternity established with the state, Illinois gives the mother of the child full custody. This means the mother is allowed to make all decisions for the child and does not have to allow the father any time with the child. The father can ask the mother if he may see the child, and she may allow for some visitation, but it is solely her decision. However, if the father takes the mother to court for visitation, refusal of visits may be held against her.
A father who was not married to the mother can be added to his child's birth certificate to establish his paternity. In Illinois, paternity establishment can be achieved in three different ways. If the parents are not married, the presumed paternity cannot be used as this involves the parties being married to each other. However, if the mother is married to someone else when she gives birth, he is presumed to be the father. A consent of paternity allows the father to sign an affidavit of paternity stating that he agrees that he is the child's father. The court can also order DNA testing to establish paternity. When paternity is established, the mother maintains full custody if there is no order for custody or visitation.
Without a court order, either parent can legally keep the child from the other in Illinois, even if the parents are not married. In this respect, Illinois treats unwed and divorcing parents equally. Therefore, it is important to file for a court order as soon as possible. While in many cases, the mother will retain either full custody or primary custody, the father will be granted some form of visitation, unless the mother can prove him to be unfit, such as through drug or alcohol abuse, physical abuse or some other danger to the child.
Custody and Child Support
Even when there is no custody or visitation court order in place for the father, he is still obligated to pay child support as ordered from the court. The mother can legally file for child support in Illinois without setting up custody or visitation for the father. The two issues are treated separately. Likewise, if the father is not paying his ordered child support, the mother cannot withhold visitation from the father without being in contempt of court. In Illinois, the custodial parent receives a specific percentage of the non-custodial parent's income based on the number of children the couple shares.
- Thomas Northcut/Photodisc/Getty Images