Unmarried Parents

Unmarried Parents in Chicago

Unmarried parents of a child often assume that he or she have the same rights as do married parents of a child. While in many ways this is true, there are important differences that need to be recognized.

One of the most important distinctions is that unmarried parents seriously should consider having a court case in Illinois, even if the parties are living together as a family unit. Why? One reason is that it is important for the father of the child to establish properly his paternity of that child. This can be accomplished in Illinois by merely completing the state form entitled “Voluntary Acknowledgment of Paternity.” Many couples complete this form at the hospital when the child is born, in order for the father to be listed on the child’s birth certificate.

However, it is important to establish that the family is living together as a unit. One problem when a family unit dissolves and the parents are not married is that, for example, one parent takes the child and moves to another location. At that point, the other parent has no officially outlined rights regarding the child. Of course that other parent has rights, but if there has never been a court case, that parent would need to “start at the beginning” and go to court to enforce his or her rights. If there was already a case on file with the court, it is much easier and quicker to establish temporary and long term rights for each parent after the breakup of the family unit. Unfortunately, we have seen far too many examples of a parent who suddenly leaves the family home with the child and refuses to allow the other parent to see that child. The other parent usually calls the police, who inform him or her that, because there is no court order, a Judge must determine each parent’s rights and responsibilities. This inevitably creates a crisis situation, which is in nobody’s interest.

Another important aspect of the Illinois Parentage Act of 1984 is that it allows a custodial parent to claim child support back until the date the child was born. However, if the parties were living together as a family unit, it would not be appropriate to award child support for those time periods. By filing a case in court when the family is living together as a unit, not only establishes each partie’s rights with respect to the child but also becomes a record that the family is living together as a unit. We have seen many cases in which the question of back child support becomes hotly contested, and the question is often if the parties were living together as a family unit during certain time periods.

Another important aspect of the law is that both the father and mother have the right to challenge whether or not the father is, in fact, the natural father of the child. However, many people do not realize that this right is limited. How? Once paternity is established, either by the court and/or acknowledged (agreed to) by the parties, it is very difficult to “undo” this determination.

As most people understand, the paternity can easily be determined by a DNA test. What many people do not realize is that you cannot request a DNA test at any time. A common scenario is where the parties agree in court (or at the hospital on a voluntary acknowledgment of paternity) that the man is the father of the child. Once a court, for example, has accepted this acknowledgment of paternity, the father no longer has the absolute right to demand a DNA test. The lesson to be learned is that if either party has any doubts regarding paternity, they should insist on a DNA test. Before paternity is established, either party has the right to insist on the DNA test; afterwards, they do not (unless both parties agree to the test).

Finally, many unmarried parents assume they have the same rights as married parents. While this is true in many regard, it is not true in all regard. For example, in a divorce case, the court has the right to regulate whether or not a custodial parent can move out of state with the child. Under the Illinois Parentage Act of 1984, the court has no real authority to block this removal of the child from Illinois. However, a non-custodial parent can, with the assistance of an attorney, negotiate a settlement in any custody matter in court, which specifically includes language that requires the custodial parent to seek court permission before permanently removing the child from Illinois (similar to the divorce rules). This is an added measure of protection that a non-custodial parent can secure from the court.

Let our Attorneys assist in determining what’s best for your family

For more information, email our Chicago Family Law Attorneys or call our Chicago office at 312.360.0250 or our Skokie office at 847.329.0101 to help you with your child custody case.

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