Who Has Child Custody When There’s No Court Order?

Who Has Child Custody When There’s No Court Order?

Who has child custody when there’s no court order in Illinois will depend on several factors, including the parents’ marital status. For example, in the case of an unmarried couple where the father has not established paternity, custody rests with the mother. In the case of a married couple divorcing, the courts encourage both parents to work out custody between themselves. The default is that married parents retain custody of children born during the marriage.

How Is Child Custody Determined in Illinois?

Illinois determines custody in many ways. One critical thing to understand is that the state divides custody into two aspects: legal and residential. Legal custody governs issues such as educational options and religious upbringing. Residential custody, as the name implies, is about where children live. Residential custody is also tied to child support matters.

Both parents could share legal and residential custody. Only one parent could have both, or one parent might have only legal but not residential. There are other variations, too.

Who Has Child Custody When There’s No Court Order in Illinois?

The unique facts of a case determine who has custody according to Illinois laws. The following list explains common situations.

  • Married parents have joint custody of a child born during the marriage (exceptions may exist for same-sex couples, where the non-biological parent may need to adopt the child).
  • Parents undergoing a divorce are encouraged to work out custody between themselves. Their agreement becomes legal when their divorce is finalized, or if one of them gets temporary orders before then. If the parents cannot agree on custody, a judge does rules based on the best interests of the child.
  • An unmarried mother has sole legal and residential custody until paternity is established. Fathers may have to petition the court to determine paternity and get joint custody of their child.
  • An unmarried mother can name the biological father on the child’s birth certificate, and both parents sign a statement establishing his paternity. The statement confirms that the mother has the father’s permission to name him on the birth certificate. From then on, both parents should have equal parenting rights.

Unmarried fathers often must climb a steep hill to prove their paternity and gain parental rights, particularly when they are not listed on the child’s birth certificate.

Some fathers think that registering through the Illinois Putative Father Registry is enough. Similarly, they might think it suffices to get a Voluntary Acknowledgment of Paternity (VAP) to establish their visitation or custody rights, especially since both parents must sign the VAP.

The reality is that the VAP is about child support, not unmarried fathers’ rights. There are many situations in which an unmarried father pays child support but cannot visit or parent the child until he establishes legal paternity.

Sometimes, a father must petition the court to get DNA testing to establish paternity. Once it is proved, the father can follow up with court petitions for visitation or custody.

If the mother names the father on the child’s birth certificate, the process of establishing paternity is easier. Both parents should have equal rights to the child, unless one of them is found to be unfit.

Child custody and visitation without a court order can be tricky to navigate without legal help. That is true for mothers, fathers, and other affected parties. For instance, a mother might leave her child with her parents for months or years and then return to claim the child. Her parents might assume they have custody, but that is not necessarily true. A lawyer can help you determine if you have custody rights to a child.

What Is Considered an Unfit Parent?

An unfit parent is a parent who cannot be trusted to care for the child. The bar for proof is high. A parent cannot deny visitation to the other parent unless it is necessary to protect the child and the situation is an emergency.

Reasons for being unfit can include abandonment or substantial neglect of the child, incarceration, addiction to drugs or alcohol, or mental illness that interferes with parenting capabilities. Photographs, texts, social media posts, and medical documents are examples of what parents can use to prove the other is unfit.

Can I Take My Child Out of State If There’s No Custody Order?

You might think it is acceptable to take your child out of state if there is no custody order, but it could be a risky assumption. Your lawyer is the best person to advise you on the nuances of your situation. Child custody without a court order is not always straightforward, and solutions that seem obvious and aboveboard might actually not be.

If you are in the process of divorcing your co-parent, there is no court order, and you take your child out of state, it could cause a lot of issues. The potential problems resulting from taking your child out of state may escalate if you do not let the other parent know, or if your actions interfere with his or her parenting time.

The considerations also partly depend on the length of the trip and the reason for going out of state. For instance, if you are moving with the child, going on vacation, or seeing family on a routine visit. There is also a difference between going out of state, but remaining in the United States, and traveling internationally.

How Can Divorcing Parents Figure Out Custody Issues?

It is usually in the child’s best interests for parents to resolve custody issues between themselves, rather than to go to trial. Joint custody or significant time with both parents is typically best for children, too.

Lawyers and mediators can help parents understand who has child custody when there’s no court order, and work out the associated issues. A parenting coordinator is another option. This person is court-appointed if circumstances call for it, such as if mediation fails. Judges tend to give a lot of weight to the opinion of parenting coordinators, so they may be instrumental in custody decisions.

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