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Who Has Custody When The Parents Are Not Married?

  • By: Eve McClurg
  • Published: January 22, 2019

Upon the divorce of married couples, child custody issues are handled in a straightforward matter by Illinois judicial systems. However, unmarried couples who separate are forced to navigate a complex road in court when disputing the custody of their child.

How Important is Establishing Paternity?

In instances of unmarried parents, the unwed father is not automatically considered to be the biological parent of the child—unlike with married couples. Establishing parenthood offers certain parental rights while also enforcing a series of legal obligations to the child.

Without establishing paternity, the unmarried father fails to have automatic rights over the child. An unmarried mother automatically has sole legal and physical custody of the child, since the mother unquestionably gave birth to the child. Sole custody remains until paternity is established.

Child Support from Legal Father

Court tests can establish legal paternity; and once established, an unwed mother has the right to seek financial support from the child’s father. In Illinois, fathers may also sign a Voluntary Acknowledgement of Paternity. A court order or public aid order may also establish paternity.

An unwed father may have signed a voluntary affidavit of paternity (VAP) to acknowledge that he is the legal father. However, he is not automatically granted visitation rights (aka parenting time). Being an unmarried parent, he must seek visitation rights through the Illinois courts system.

Since signing the VAP does not automatically guarantee the father parenting time or the allocation of parental responsibilities, the father who seeks these rights must petition the Illinois courts for an Order of Parentage. He may also be responsible for child support upon establishing paternity.

Identifying the Legal Father

The unmarried mother may also bring a paternity lawsuit against the likely father in the event that he denies he is the biological parent. Upon appearing in court, the probable father will submit to DNA testing or genetic blood testing, which provides results with 99 percent accuracy.

If the father has legally established paternity, the unwed mother’s custody of the child remains unaffected. Any change in custody that is pursued by the father must be obtained via a court order. Child support is only imposed upon the successful establishment of paternity.

How Are Judicial Courts Involved in Custody?

Unmarried parents are advised to file a case in court to obtain an order outlining the schedule for parenting time, holidays, and an allocation of parental responsibilities. The benefit of a court order is that all parties involved know what to expect in relevance to their child should they split.

However, issues between unmarried parents may prevent them from agreeing on legal and residential custody. In such cases, a judge will step in and arrive at a decision. Joint legal custody is typically awarded when the parents are able to communicate.

When unwed parents fail to communicate, the courts will be reluctant to award joint custody. In such instances, the judge is likely to award sole legal custody to the mother or father who has been given residential custody of the child.

How Is Residential Custody Determined?

A parent who is awarded residential custody will be obligated to pay child support. Residential custody will also determine where a child lives or spends the majority of his days. As a result of the division of time, the courts view joint residential custody as impractical.

When deliberating residential custody, Illinois courts evaluate several factors. The relationship of the child with each parent, how well each parent is able to care for the child, whether a parent has neglected to pay child support and the physical and mental well-being of the parents undergo scrutiny.

Additionally, residential custody cases consider the wishes of each parent in regards to their offspring. The child, too, may voice his/her preferences; however, the child’s emotional development and age are factored in. A history of domestic violence by either parent is also given considerable weight.

How Is Legal Custody Determined?

Unlike residential custody, parents may share legal custody; or, sole legal custody may be entrusted to one parent. Legal custody gives the parent the right to make important life decisions regarding the child. Such decisions applicable to the child may include medical, educational, and religious, for example.

The parent with legal custody also has the right to restrict visitation and to decide who sees the child and for what duration. If a parent has threatened to harm or flee with the child, the parent with legal custody has the right to refuse visitation.

Even though an unwed parent may be vested with sole custody, the noncustodial parent still plays a role in the child’s life. This parent has the right to access the child’s medical and school records, among other information. The parent may also speak with the child’s teachers or physicians.

Work with a Child Custody Attorney

When faced with a child custody issue, you will benefit from a family law attorney who is skilled in advocating for parental rights. Berry K. Tucker & Associates, Ltd. will help you present your child custody case favorably. We are positioned to argue for the safety and security of your child.

The child custody lawyers at Berry K. Tucker & Associates, Ltd. heavily investigate and research each case in order to present the most persuasive arguments in court. Every case receives our undue attention and prompt handling so that clients may return to their everyday lives as soon as possible.

Our firm of dedicated lawyers stay up to date on the changing laws in Illinois. We are prepared to skillfully fight for your rights as a parent and those of your child. Whether you seek joint custody, full custody or shared parenting, rely on the family law attorneys at Berry K. Tucker & Associates, Ltd.

Families who reside in the Oak Lawn, Illinois, area are encouraged to consult Berry K. Tucker & Associates, Ltd. for our proven legal expertise in handling a multitude of various child custody cases. Our many satisfied clients can attest to our lawyers’ professionalism and dedication to every case.

Eve McClurg

About the Author I am licensed in the state of Florida and New York. I have represented and
defended cases involving the Department of Children and Families,
the Department of Corrections,