Are Child Custody Laws Different for Unmarried Couples?

gavel with wedding rings

In the last 15 years, the percentage of babies born to unwed mothers in Illinois has increased slightly from 37% to 40%, according to the Centers for Disease Control and Prevention. Some parents choose to remain unmarried when they decide to start a family, and others choose to raise their child as a single parent. No matter the reason, Illinois child custody and support laws are designed to serve the best interests of the child.

Legal Custody

For unmarried parents, the mother has sole legal and physical custody until the father establishes paternity. When the mother has sole custody, she has the authority to make all decisions regarding the child’s welfare. For married parents, both spouses are assumed and given legal parentage.

A mother with full legal and physical custody can make such decisions as:

  • Where the child lives
  • What school the child attends
  • Who helps with childcare
  • What medical care is needed
  • If the child travels or takes vacation

Putting the father’s name on the birth certificate does not automatically establish legal parentage when the couple is not married. If the father whose name is on the birth certificate later marries the mother, then he automatically becomes the legal parent of the child.

Rights of Unmarried Fathers

Illinois law requires courts to treat parents in a 'gender-neutral' manner so mothers are not granted greater rights simply because they are the mother. Illinois assumes both parties are fit to parent the child and should have parenting time unless that is not in the best interest of the child.

Father’s rights include the ability to seek custody and visitation, but they must first establish paternity through a court-approved method.

There are three ways parentage can be legally confirmed in Illinois:

  • Voluntary Acknowledgement of Parentage (VAP): This form can be used when both parents agree on who is the mother and father. This is a legally binding document, and the signer is presumed to be the child's father, regardless of whether a DNA test has been conducted. The signer has 60 days to rescind the contract.
  • Going to Court: Asking the court to determine parentage often requires DNA testing and is needed when the parents do not agree about who is the mother or father. It’s a time-consuming process and should be guided by an experienced attorney.
  • Department of Healthcare and Family Services (DHFS) Hearing: A person who is receiving assistance and needs to establish paternity can go through a DHFS hearing. The hearing determines parentage and child support, but not custody or parenting time.

Determining Child Custody

Illinois defines legal and physical custody differently. Legal custody is about decision-making authority while physical custody is about who has the child day-to-day.

Parents can decide a custody arrangement that is put into a legal parenting plan with the help of a lawyer. If they don’t agree on custody issues, they can attend court-ordered mediation. A certified mediator helps parents communicate with each other and come to an agreement. Lastly, the case can go to court for a judge to decide. The court awards custody and visitation based on what would be most beneficial to the child.

The parent who is awarded custody of an unmarried couple's child is entitled to receive child support from the noncustodial parent.

When Unmarried Couples Part Ways

Unmarried couples often live according to informal agreements and may also live together. Should they break up, child custody and support issues are decided in the same manner and the father must establish paternity. As a side note, Illinois law provides for an equitable distribution of marital property when a married couple divorces. There are no such rights for unmarried couples. Unmarried parties have little remedy to recover property. This has been reaffirmed as recently as 2016 by the Illinois Supreme Court even if the couple has comingled money and other property.

Legal Guidance for Unmarried Couples

If you are the father or mother of children born out of wedlock, our skilled attorneys at Law Offices of Jonathan Merel, P.C. can provide insightful counsel. Whether you are a man seeking to establish paternity, or a mother trying to establish paternity and receive child support, we offer compassionate and experienced legal help to navigate the complexities of Illinois law.

Learn more about how we can help you by calling (312) 487-2795 or by reaching out through our online form.

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