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 doesn't recognize any legal rights or obligations to the child on the father's behalf and 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 for unmarried couples can be achieved in two ways:
- The voluntary acknowledgment of paternity (VAP) form
- A Department of Healthcare and Family Services or public aid order
Additionally, if the mother is married to someone aside from the biological father when she gives birth, her spouse receives presumed paternity of the child. The mother and her spouse can sign a denial of parentage form to give paternity to the biological father, as long as he signs a VAP form. Even when paternity is established, however, the mother maintains full custody of the child if there is no order for custody or visitation.
Illinois child custody law states that 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 parents' rights just as those for divorcing parents. Therefore, it is important to file for a court order as soon as possible.
In many cases, the mother will retain either full custody or primary custody of the child. The father will then 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.