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The Rights and Responsibilities of Unwed Fathers

The Rights and Responsibilities of Unwed Fathers

In Illinois, fathers have a number of rights and responsibilities regarding their children, even if they were not married to the mother. In order to obtain custody or visitation, or to be held legally responsible for child support, however, Illinois law requires that paternity must first be established. Without legal paternity, the mother retains sole, physical custody, the father cannot petition the court for visitation and other parental rights, and the mother cannot pursue child support in the courts.

Methods to Establish Paternity Under Illinois Law

For unwed fathers who wish to assert their parental rights, and mothers wishing to pursue child support in Illinois, establishing paternity is the first legal step that must be taken. Under the Illinois Parentage Act of 2015, paternity can be established when:

  • A Voluntary Acknowledgement of Parentage (VAP) is signed by both parents. The VAP can be signed either before or after the birth of the child. Any challenges must provide clear and convincing evidence and must be made within two years.
  • Child Support Services enters an Administrative Paternity Order. The Illinois Department of Healthcare and Family Services will often attempt to establish paternity on their own. Typically, they will request an in-depth interview and schedule DNA testing to establish a genetic link between the alleged father and the child. It is very important for fathers to comply with the interview and testing- especially if they doubt the validity of a paternity claim. If the alleged father does not attend the interview, HFS can declare that he is the legal father by default.
  • A final paternity order is issued by the court. A child, mother of a child, pregnant mother, alleged father, or any government agency that provides care or support to the child can use the judicial process to bring a paternity action to the court. When a paternity action is brought, the court will hold a hearing in front of a judge to determine whether the presumed father is the biological and legal father of the child. Again, if the presumed father does not attend the hearing, the judge can issue a paternity order declaring him the legal father in his absence.

Although over-the-counter home DNA tests are offered by a variety of merchants, they are not admissible in court and do not establish legal paternity.

Obtaining Parental Rights After Paternity is Established

Once paternity has been established, the father does not automatically receive custody rights or parenting time. To gain custody or parenting time rights (visitation), the father must take legal action and request that the courts grant the parenting rights that he deserves. When determining whether a father should be granted custody or parenting time of his child, the court evaluates a variety of factors to ensure that the best interests of the child are met. These factors typically include but are not limited to:

  • The wishes of the child and both parents
  • The age and special needs of the child
  • Any previous relationship between the parent and the child, including any history of violence
  • The mental, physical and emotional well being of the parties

The Benefits of Establishing Paternity

Like married/ divorced fathers, unwed fathers are responsible for physically, mentally, monetarily, and emotionally supporting their children once paternity is established. Establishing paternity is usually beneficial for all parties involved. In addition to offering fathers the opportunity to seek custody or parenting time, children born out of wedlock become entitled to a number of benefits when paternity is established, and unwed mothers can receive parenting support as well. Benefits for the child include but are not limited to:

  • Connectivity and a Sense of Belonging: A strong relationship between both parents and a child can play a significant role in the quality of life the child experiences. A number of studies have indicated that when both parents play an active role in their children’s upbringing, the children are more apt to lead more successful lives.
  • Financial Security: Child support is not the only way that fathers can contribute to the financial security of their children. When paternity is legally established, children have the opportunity to receive health insurance, social security, inheritance rights, and life insurance, and veteran’s benefits through the father, which can help them be more financially secure.
  • Health and Wellness: Establishing paternity gives children the legal right to access the father’s medical history. This is extremely important to ensure that health care providers have a deeper knowledge of any hereditary illnesses or other medical conditions that could have been passed down from the father.

Family Law Attorney

Although legal paternity can be established at any time before the child reaches the age of maturity, an Illinois family law attorney will often recommend that parents pursue the matter as early as possible to protect the rights of the child, the father and the mother.

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