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Kevin O'Flaherty

In this article, we explain the custody and parenting rights of unmarried fathers in Illinois.  We discuss how to establish paternity in Illinois and answer the questions, “what rights does the father have once paternity is established?” and “how is parenting time and responsibility determined for unmarried fathers?”

How to Establish Paternity in Illinois

If you are the biological father of a child that was born out of wedlock, the first step in obtaining parenting rights is to establish paternity.  Until paternity has been established, you will have no rights to see your child or to act as a parent.  

Paternity can be established at the birth of the child if both parents sign a Voluntary Acknowledgment of Paternity, it can also be established after the birth of the child by agreement of the parents.  To learn more about this, check out our article: Voluntary Acknowledgment of Paternity and Establishing Paternity by Agreement in Illinois.

If there is a dispute as to paternity, the father can file a petition to establish paternity.  After filing the petition a hearing will be held, at which point both sides can present evidence for and against the alleged father’s paternity.  The most commonly used evidence is DNA testing.  To learn more, check out: Illinois Paternity Law Explained.

Once paternity has been established, the father can take steps to be added to the birth certificate, even if the mother objects.  More: How to Add the Father to a Child’s Birth Certificate in Illinois When the Mother Objects.

What Rights Does the Father Have Once Paternity is Established?

Once paternity is established, the father will be obligated to pay child support, but will not automatically gain any parenting rights or access to the child.  However, the establishment of paternity gives the father the ability to initiate a court proceeding to seek parenting time and responsibility.  Parenting rights can be established either in the paternity suit or later in a separate hearing.  

For more, check out: What Rights Does a Father Have if He is on the Birth Certificate?

How is Parenting Time and Responsibility Determined for Unwed Fathers?

Illinois courts no longer use the terms “custody” and “visitation.”  Since 2016, when we talk about child custody, we are talking about “parenting time and responsibility.”  This is intended to lessen conflicts between the parents over who has “custody,” because parenting time is a sliding scale rather than a binary choice.  For more on how this works, check out Illinois Parenting Laws 2019.  

If the parents are unable to arrive at a parenting agreement, courts will order mediation to assist the parents in resolving any issues regarding parenting time and responsibility.  If mediation is unsuccessful, courts generally appoint a guardian ad litem to investigate the case and make a recommendation to the court.  Finally a hearing will be held, during which the court will determine what parenting arrangement will be in the best interests of the child.  

In determining how to apportion parenting time and responsibility, courts will weigh a number of factors to determine the best interests of the child.  To learn about these factors, check out: Factors Courts Consider for Child Custody Issues.  

Theoretically, the law is genderless.  Courts are not supposed to favor the mother over the father.  However, unwed fathers have an uphill battle in gaining the majority of parenting time and responsibility.  This is because of the “primary caretaker presumption.”  One of the factors courts use in determining which parent’s home will serve as the child’s primary residence is which parent has generally been the primary caregiver of the child to date.  All things being equal, courts presume that it is generally in the best interests of the child to primarily reside with the person who has been their primary caregiver.  To learn more about the factors courts use to determine which parent is the primary caregiver, check out: The Primary Caregiver Presumption in Illinois Child Custody Cases Explained.  

In the case of unwed parents, the mother is typically the primary caregiver prior to any parenting proceeding.  This tends to give the mother an advantage in disputes over parenting time and responsibility.  However, the primary caretaker presumption is only one factor in determining the best interests of the child.  In some cases the father can show that, based on other factors, it is in the best interest of the child to reside primarily with the father.  

The bottom line is that parenting cases are highly fact-specific and decided on a case-by-case basis based on the child’s best interests.  Even though unwed fathers are at a disadvantage, all things being equal, courts will award roughly equal parenting time.  An unwed father will also have the opportunity to show that awarding the father the majority of parenting time and responsibility is in the best interests of the child based on the facts of the case.  

A reader asked the following question on the topic:

Q: I am an unmarried father to 2 children. The mother and both children have lived with me for 8 years. I am a stay at home dad/work from home dad and take one child to school and pick her up 3-4 days a week. I stay with and provide caretaking to the other child while their mother is working 9+ hours a day at least 4 days a week. I cook breakfast, lunch, dinner, clean house. I play with the children, change diapers. I own my own home and have paid all bills for 8 years. I pay for as well as take my child to after school activities at least once a week also for the past 2 years. I put my children's needs above my own 100% of the time. I don't drink or do drugs, have never been arrested, and have no criminal history whatsoever. Ex and I are now splitting up. I signed the VAP of both children’s births. I want primary custody as I feel I am doing the vast majority of caretaking and am available 24/7 for my kids as I am a stay at home dad. What are my chances of this happening in Cook County? I believe the children should be with me at least 50% of the time if not much more. Is this realistic and what can I expect?

A:  In your case, the primary caretaker presumption will work in your favor.  For the sake of continuity, a court is likely to find that it is in the best interests of the child to continue to be cared for primarily by you.   I believe it is realistic to expect that you will be awarded at least equal parenting time should you and the mother not be able to come to an agreement.    

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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