Child Custody without a Court Order
By M. Scott Gordon
When a couple with children divorces, a judge will issue a child custody order as part of the process of dissolving the marriage. However, for parents who were not married when their child was born, and who have now parted ways, it is common to not have a formal custody agreement. Just because there is no legal document that lays out the rights and responsibilities of each parent, it does not mean that both parents will be treated equally under the law if a dispute arises. If your child’s other parent is trying to take your child from you or prevent you from seeing them, you should speak to an experienced child custody lawyer right away.
Illinois law declares that the parent who has physical possession of the child has de facto custody, in the absence of a custody agreement or order to the contrary. This means that if your child lives with you, you are considered to be their primary legal guardian.
Either mothers or fathers can be the “default” custodial parent. Unlike mothers, who are legally considered parents by virtue of giving birth to a child, fathers of children born out of wedlock must legally establish paternity. Paternity can be established either by voluntarily signing an agreement, or by being proven to be the father in administrative or court proceedings. However, being a parent officially listed on a child’s birth certificate does not automatically confer custodial rights to a mother or to a father. If you do not have physical possession of your child, you will have to fight to be granted sole or joint custody by a family law judge.
Disputes Over Custody Can Be Messy
Whether his paternity has been established or not, if a father takes a child away from the child’s mother, he runs the risk of being charged with child abduction under Illinois law. Although it is possible for a mother to be guilty of child abduction if she refuses to let a father with custody or visitation rights see the child, the law does not specifically address these circumstances. On the other hand, it does directly deal with child abduction by a father. The Illinois Criminal Code says that a father who conceals a child without the consent of the “mother or lawful custodian” commits a Class 4 felony, which can be punished by jail time, a fine, or both. This law has resulted in the solidification of the rule that mothers are the default custodial parent, in the absence of a formal custody arrangement.
Seek Advice from a Dedicated Family Lawyer
If you do not have a formal custody agreement with your child’s other parent, and you disagree on who should have custody of your child, you should consider enlisting an attorney to help you put an agreement in place. Gordon & Perlut, LLC can help walk you through the process of clarifying your rights to custody or visitation to avoid any unpleasant disputes, and we are ready to represent you and your interests in court in order to get a legal custody agreement. Contact our Chicago or Skokie offices today for a consultation on your custody matter.