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Unwed Parents and the Custody Rights of the Father

Illinois law provides that when the parents are unmarried, the mother has sole and physical custody until paternity is established—in these cases, the father needs to initiate a legal action for custody if he wants it. A paternity action may be filed to assign custody and visitation rights by a woman who is pregnant or has a child and a man who believes he is the father of a child.

Being the legal father in Illinois

Illinois law defines additional methods in which a man can establish his paternity by law. A man is a child's father in Illinois only if one of the following is true:

  • At the time of conception or birth, the man was married to the child's mother
  • The man lawfully wedded the mother after the child was born and he was listed on the birth certificate as the father with his written consent
  • An Illinois court or Department of Public Aid administrative order establishes his paternity
  • The man and the child’s mother signed a voluntary acknowledgement of parentage

Without legal paternity, the man has no right to petition the court for custody or visitation and the mother cannot request child support.

Gaining custody after paternity

Once paternity is established by one of the methods previously mentioned, it does not automatically give the father custody or visitation rights. The father must formally request that he be granted custody or visitation because it is in the best interest of the child. The court determined what the best interest of the child is by evaluating relevant factors that may include but are not necessarily limited to:

  • The child’s and parents’ wishes
  • The child's age
  • The emotional, physical and mental well-being of all involved parties
  • Interrelationship between the siblings, child and parents
  • Any sign of physical violence
  • The child’s level of satisfaction in school, community and home
  • The level of each parent’s commitment to promoting a positive relationship between the child and  the other parent
  • What was the nature of prior contact between parent and child

Proving paternity can help the biological father gain the custody and visitation rights he deserves. Proving paternity can also help a single mother obtain child support to which she is entitled. If you are involved in a paternity action, contact a North Shore family attorney to learn about your rights.

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