Background on the Illinois custody laws
Neighborhoods are filled with busy households of parents, children and caregivers who are rushing from daycare to school pickup to soccer practice to home. In the chaos, it is easy to forget – or never even really understand – that not all of those adults have the same relationship with the children, or the same rights.
Most married couples are automatic co-parents with equal parenting rights to ensure daily care of their kids, make decisions about what school they attend, etc. This is the general rule. Certain circumstances will impact this arrangement where there is a striking of the balance to one side.
Unmarried couples have the same rights as married couples when it comes to spending time with their children, but there are some differences.
Illinois law presumes that both legal parents have equal rights when it comes to parenting their children, regardless of the situation. There is no automatic custodian when parents are married or unmarried, instead they undergo the same process to legally determine responsibilities for their joint kids.
In the eyes of Illinois family law, legal custody and physical custody have different meanings:
Legal custody, more recently known as parental responsibilities, is the legal right to make major decisions about a child’s upbringing. These types of parental responsibilities include but are not limited to education , health care, religion, and travel.
Physical custody, also known as parenting time, is where the child resides. The parent who the child stays with most of the time is considered the residential parent. To differentiate from the residential parent, the other is considered the "parenting time parent."
A child may have more than one home. If the parents do not have an agreement about parenting rights, they will need to ask the court to give them specific arrangements. The court will look at the child’s best interests. However, it is important to note that a parent does not have to be married to obtain legal custody for his or her biological child.
Unmarried parents will have to prove paternity to establish "end rights" in Illinois before obtaining parental responsibilities. If one parent does not have an established legal right, the other parent may deny contact or parenting time between the child and that individual (this is a very serious matter to consider when deciding whether to establish paternity, however, the need is even more important).
While the phrase "best interest of the child" is used repeatedly in Illinois laws and statutes, the meaning is subjective and it is up to the judge to decide in each case.
In 2016, Illinois reformed the law to replace custody and visitation with parental responsibilities and parenting time.
Legal rights to custody for unmarried parents
In Illinois, the question of custody for unmarried parents is governed by the Illinois Parentage Act (750 ILCS 46/1) and its Recent Amendments (750 ILCS 46/220-238). Under the common law, an illegitimate child was not the legitimate child of either parent, and so had no rights of inheritance or custody, unless such rights were explicitly recognized by law. Under that law illegitimate children have much more limited rights, however, the new statute disregards this notion and provides that the rules that apply to a child born during marriage equally apply to a child born outside of marriage. It should be noted that this presumption does not extend to a sperm donor.
In the case of unmarried parents, paternity must be established before the court may award custody or allocate parental rights and responsibilities. Either parent may seek to establish paternity, but in most cases it is the mother who first seeks to establish paternity usually because the child was born of an unknown father. Once established both parents become legally responsible for the care and maintenance of the child. Both parents will then be entitled to parenting time, also commonly referred to as visitation, with the child.
Not all automatic rights under the common law apply, however, and a presumption favoring sole or joint custody does not exist. Instead, the law now requires the court to determine what is in the best interest of the child. The factor the court considers relevant to that decision are set forth at 750 ILCS 5/602(a).
Proving paternity in Illinois
Establishment of paternity is the process by which a man is determined to be the biological father of a child. Paternity is significant for any unmarried father seeking to establish custody or parenting time (the new legal term that replaces visitation time in the Illinois Marriage and Dissolution of Marriage Act) with his child. It can be established by filling out a Voluntary Acknowledgement of Paternity form at a child support office in Illinois or at the hospital during the birth of the child. Alternatively, it can be established through genetic testing, and filing a Petition for Adjudication of Paternity with the court. Just as a divorce action is the legal way in which to address parent-child issues at the end of a marriage, the legal way in which issues are addressed at the start of a relationship between parents of a child born out of wedlock is through a paternity action.
Paternity establishes both the biological relationship between the parents and the child, and establishes legal rights and responsibilities that flow from that relationship. Once paternity has been established, the child has the right to inherit from both parents in equal shares as if they were married. Paternity also establishes both the parents’ obligation to support the child financially. When a paternity action is filed with the court, Service of Process issues to the other parent must occur. Once paternity is established, parenting time between the parents and child must be shared and addressed by the court.
Court considerations in custody cases
The court will consider a variety of factors when determining custody for unmarried parents. Primarily, the court’s consideration is the best interest of the minor child. What this means specifically is that the court will weigh each parent’s relationship with the child objectively and as it relates to the child’s overall health and well-being. The court will also assess the physical, mental, and financial capabilities of both parents. However, in some cases, such as if the parent performed acts of violence against the child, against another family member, or against the other parent, this can be a deciding factor.
All things being equal with no noteworthy abuse or violence, the specific factors and inquiries of the court will include: Choosing between two fit parents is a very difficult task for any parent. The courts rely on the opinions and individual assessments of the parties and what they present to the court. Testimony is given by the parties, witnesses, and expert witnesses.
Differences between joint custody and sole custody
In Illinois, custody laws are set out in the Illinois Marriage and Dissolution of Marriage Act, but there are few differences between how married couples break up and how unmarried couples do the same. In both situations the custodial rights and responsibilities of one parent or both parents are first determined by a specific court order, which is known as a parent plan. Parent plans are more commonly called agreements, though the latter term tends to imply a level of negotiation that does not always occur. Unmarried parents can create parent plans with terms similar to those that govern divorce, including joint custody, sole custody, visitation and child support.
Joint custody provides for both parents to share the legal and physical responsibilities for raising a child , while sole custody provides for a single parent to have all of those responsibilities. However, the custody system in Illinois is not as straightforward: Physical and legal custody can be evident separately, and even having sole physical custody does not necessarily mean having sole legal custody.
Unmarried parents can benefit from joint custody arrangements because these often involve the same type of considerations as a divorce, such as child support and parenting responsibilities. Speaking to an attorney about your situation, the options that exist and the possibilities for your family can help you understand your rights and expectations regarding a parent plan.
Changing a custody arrangement
In the same way that divorcing spouses enter into a parenting plan or custody agreement, unmarried couples may also agree as to custody. Once the agreement is made, however, the circumstances that prompted the agreement, may change, or the parents may simply want to make adjustments to the existing agreement. In Illinois, unmarried parents are permitted to bring what is known as a petition to modify allocation of parental responsibilities.
A petition to modify allocation of parental responsibilities will be granted by the court provided it is in the best interests of the child. In other words, the petitioner must submit evidence that related to what is best for the child. Illinois law lays out a number of factors that must be considered in a best-interests-of-the-child analysis:
A petition to modify will generally be granted if the petitioner provides the court reasonable advance notice of the modification, and the parents are in agreement. If the parents are in disagreement, the court is not obligated to issue the order. However, an order modifying the agreement may still be issued under certain circumstances. For instance, the court may grant a parent with whom the child does not primarily reside, greater parenting time. Or, as previously touched on, the court may require that both parents work together toward raising the child, thereby diminishing conflict.
A petition to modify allocation of parenting time must contain specific information, including, but not limited to, the type of modification sought, the reasons behind the modification, and a proposed visitation schedule. When proposing a parenting schedule, whether for the purpose of a new parenting plan or the modification of an existing plan, the schedule should meet the child’s best interests, as set forth above.
Finally, it is important to understand how the modification process differs from an initial allocation order. Specifically, the burden of proof placed on the petitioner is considerably more in a modification action, than an original allocation action.
Legal sources of information for unmarried parents
Legal Resources for Illinois unmarried parents can take many forms, including family law attorneys, legal aid services, and self-help centers.
Family Law Attorneys
Getting a family law attorney is one of the most powerful legal resources you can have when fighting for your child’s best interests. Assuming the lawyer is a good one, which in this day and age is a subjective statement, he or she can help you build up your case by playing the role of adviser, voice, and mouthpiece.
Legal Aid Services
Legal aid services can help low and middle income individuals with divorces, custody battles , and finding other legal resources. Many of these services are not free, but they’ll cost a heck of a lot less than hiring a private attorney.
Self-Help Centers
There are self-help centers at courthouses all over Illinois. They are free resources to help parents file for custody and visitation, respond to those types of petitions, and handle the matters that can come after an order is placed – such as changes in physical custody. These centers are run by lawyers, but you will NOT get the type of advice you would from a private attorney. However, the information is valuable and can save you time, money, and a headache.