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I Am Not Married to the Mother of My Child, What Rights Do I Have?

Posted on in Child Custody

fathers rights, unmarried, illinois child custody lawyerIt is common in today’s world for couples to have children out of wedlock. There is no longer, or at least less so, a stigma about putting kids before marriage. However, the problem arises when (if) the relationship ends. The mother is presumed to the parent of the child by virtue of having given birth to the child. A man is presumed to be the father of a child if he and the mother are or have been married to each other, if the father signed a voluntary acknowledgment of paternity (VAP), and/or the father is on the child’s birth certificate. What rights does the father or mother have if the relationship ends and there was no marriage?

Parentage matters are governed by multiple statutes. First, the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq). This is different from the Illinois Parentage Act (750 ILCS 40/1 et seq.) which deals with artificial insemination. The Illinois Parentage Act of 1984 is usually referred to as the “Paternity Act.”

Second, the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) plays a significant role in the parentage actions. For example, 750 ILCS 5/607 is the Visitation statute that governs the standard used in the Paternity Act for setting visitation for a unwed parent. A non-custodial parent is ENTITLED to reasonable visitation unless a court finds that visitation between a child and parent would “endanger seriously the child’s physical, mental, moral OR emotional health. For this reason, the majority of parents are entitled to visitation with their child. Reasonable visitation is discretionary and case specific.

Further, Sec. 607 of the Illinois Marriage and Dissolution of Marriage Act defines visitation. Visitation is defined as “in-person time spent between a child and the child’s parent.” There are other forms of visitation which can be granted by a court above and beyond “in-person time” – such as electronic communication (Skype, emails, face-time), and telephone visitation. For most parents, the preferred time is in-person. Circumstances such as traveling for business may make in-person visitation not reasonable for certain parents.

For a long time, “reasonable” visitation for a non-custodial parent was every other weekend and “dinners” during the week. There is now a trend toward giving the non-custodial parent significantly more time than this old boiler plate schedule. Many judges are even leaning toward what is called a “shared visitation” schedule whereby the parents share close to equal time with their children. An example of a shared schedule is: one parent has the children every Monday and Tuesday. The other parent has the children every Wednesday and Thursday. Both parents alternate weekends, Friday through Sunday. Under this schedule, no parent goes more than 5 days in a row without seeing their child, the children know with certainty which parent they will be with on Monday through Thursday, and the time is divided equally.

The other major statute that governs the Paternity Act is the Illinois Code of Civil Procedure Act (735 ILCS 5/109 et seq). This is an important component to the Paternity Act because it sets forth rules on due process (notice and the right to be heard), verification of pleadings, motions to dismiss, motions to vacate, and the like… to name a few. Motion practice can be a large component of parentage cases, as governed by civil procedure.

There is a presumption in parentage cases that custody of the child shall be with the mother. However, the presumption “shall not apply if the father has had physical custody for at least 6 months prior to the date that the mother seeks to enforce custodial rights.” 750 ILCS 45/14(a)(2).

If you have more specific questions about your parentage action, and your rights as the mother or father of your child, please consult one of our lawyers at Weiss-Kunz & Oliver, LLC.

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