Unmarried Fathers: Protecting their Rights in Illinois

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When a child is born to an unmarried father, it is extremely important that he take the necessary steps to protect his rights. It is presumed in Illinois that the husband is the legal father of the child born to a married woman. However, automatic legal rights are not given to the biological father when a child is born to an unmarried woman, even if the relationship between the mother and father has been long-term. Only by legally establishing paternity may a biological father seek custody or visitation rights. 

Legal Paternity Must be Established

Establishing paternity should be done as soon as possible after the birth of the child. Under Illinois law, there are three ways in which an unmarried father can establish legal paternity.
If unmarried parties are in agreement on paternity of the child, both parents may sign a Voluntary Acknowledgement of Paternity. This is a legal document that may be provided to the parents for signature when the child is born. This form is also available online or from the Department of Human Services, Child Support Services, or from the County Clerk’s office. The Voluntary Acknowledgement of Paternity is the simplest method of establishing paternity that is recognized in Illinois. However, it requires both parties’ agreement.

Alternately, if the parties do not agree, either may choose to retain a family law attorney and involve the court in establishing paternity. The legal process may take time, and DNA testing may be required, however, in some cases it is the only alternative.

Finally, paternity must be established prior to a mother seeking child support, and The Department of Health Care and Family Services' Child Support Services office may initiate a paternity case in situations when a child’s mother is attempting to secure public benefits on behalf of her child. 

Seeking Custody or Visitation

Establishing paternity is a necessary first step toward seeking custody or visitation, however, legal paternity does not assume these rights.  A child’s mother is presumed to have legal custody in Illinois if the child has been living with her, and a father’s attempt to exercise rights without the appropriate legal documents in place may be faced with additional legal issues. For a father, as soon as his child is born, establishing custody and visitation rights must be a high priority.

Once legal paternity has been established, a father should research and retain a family law attorney with experience in cases involving custody, visitation, child support and other related issues.  An attorney will work with the father to create a parentage agreement, which is a legal document setting forth the obligations and rights of each parent.

Ideally, parents will be able to agree on the terms of the parentage agreement. In cases where the parents cannot agree, the court may need to be involved, and a judge will consider what is in the best interest of the child when deciding upon an arrangement.

Understanding your rights and the process involved in protecting them is an unmarried father’s first step toward securing his relationship with his child. A father’s role is proven critical in a child’s development, and being a positive presence and providing support for a child is any parent’s responsibility and privilege.