Are My Custody Rights Different If I Was Never Married To My Significant Other?

April 21st, 2024 by Tiffany Hughes

In the realm of family law, custody disputes can be complex and emotionally charged, this is true for unmarried parents and married parents. In the State of Illinois, custody rights for unmarried parents are governed by specific laws and regulations that differ from those applicable to married couples. Understanding these nuances is crucial for individuals seeking clarity and resolution in custody matters, including their parenting plan. So, are custody rights different if you were never married to your significant other in Illinois? Let’s delve into the legal framework to find out.

Are My Custody Rights Different If I Was Never Married To My Significant Other?

In Illinois, custody laws prioritize the best interests of the child above all else regardless if your unmarried parents or married parents. Whether parents are married or unmarried, the court’s primary concern is to ensure the child’s well-being and safety, specifically the statute states:

“The court shall allocate decision-making responsibilities according to the child’s best interests” 750 ILCS 602.5(a)

However, for unmarried parents, establishing custody and visitation rights typically involves additional steps compared to married couples:

1. Paternity must be established for unmarried fathers to assert their custody rights. Paternity can be established voluntarily by signing a Voluntary Acknowledgment of Paternity (VAP) form, which legally recognizes the father’s relationship to the child. This form can be signed at the hospital when the child is born or at a later date through the Illinois Department of Healthcare and Family Services.

2. If paternity is contested or if the parties are unable to reach an agreement, a paternity action may be initiated in court. This legal process involves DNA testing and court proceedings to determine the biological father of the child. Once paternity is established, the father gains legal standing to pursue custody and visitation rights.

What is Legal Custody and Physical Custody?

In Illinois, custody is divided into two main categories: legal custody and physical custody. Legal custody refers to the authority to make important decisions regarding the child’s upbringing, including matters related to education, healthcare, and religious upbringing. Physical custody, on the other hand, pertains to where the child resides on a day-to-day basis.

Unmarried parents and married parents can pursue joint custody or sole custody arrangements, depending on the circumstances of their case. Joint custody may involve shared decision-making responsibilities and/or shared physical custody arrangements, where the child spends significant time with both parents. Sole custody grants one parent primary decision-making authority and physical custody, while the other parent may be awarded visitation rights.

How does Illinois determine a Custody Arrangement?

When determining custody arrangements, Illinois courts consider various factors, including the child’s preferences (if they are of sufficient age and maturity), the parents’ respective living situations, the quality of the parent-child relationship, and each parent’s ability to provide for the child’s needs. Additionally, the court may consider any history of domestic violence or substance abuse that could impact the child’s safety and well-being.

It’s important to note that a parenting plan which includes a custody arrangements, and details out parental responsibility are not set in stone and can be modified. For example, parenting plans can be modified if there is a substantial change in circumstances,  if the current arrangement is no longer in the child’s best interests or the two-year requirement has passed. Additionally, unmarried parents and married parents are encouraged to work collaboratively to create a parenting plan that addresses their child’s needs and promotes a healthy co-parenting relationship.

What if my Ex and I can’t agree on a Custody Arrangement?

When parents cannot come to an agreement on a custody arrangement, the Court will typically appoint a Guardian Ad Litem (“GAL”) or a Child Representative (“Child Rep”) to investigate and represent the child’s best interest. Once the GAL has conducted their investigation through a series of interviews, the GAL or Child Rep will make a recommendation to the Court on the amount of parenting time and allocation of parental responsibilities each party shall receive. Specifically, the statute states the following:

“The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody or allocation of parental responsibilities dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child” Ill. Sup. Ct. R. 907(e)

If both parties cannot agree after the GAL or Child Rep’s investigation, then a Judge will set the case for a trial or a hearing and make a final decision regarding all aspects of a parenting plan including joint custody, sole custody, parental responsibility and parenting time.

While unmarried parents in Illinois face unique challenges when navigating custody disputes, they are afforded the opportunity to assert their rights and responsibilities as parents through legal channels. Establishing paternity is the first step towards securing custody and visitation rights, followed by thoughtful consideration of the child’s best interests in crafting custody arrangements. By understanding the legal framework and seeking guidance from experienced family law professionals, unmarried parents can effectively navigate the complexities of custody matters and prioritize the well-being of their children.

Need More Information or Representation?

If you need help proving paternity, creating a parenting plan, or need legal representation in your custody arrangement give The Law Office of Tiffany M. Hughes, P.C. a call today at 773-893-0228 for a confidential, complimentary 30-minute phone consultation or email Tiffany Hughes directly at Tiffanyhughes@thugheslaw.com. Our entire practice is solely dedicated to the area of family law. We are highly experienced in providing legal representation if you are fighting for custody, are unmarried parents, married parents, need to hire a Guardian Ad Litem or Child Representative, need assistance in allocating parental responsibility, establishing a custody arrangement, DNA testing, fighting for sole custody, issues with paternity, or have questions about the next steps to promote co-parenting.

About Tiffany M. Hughes, Divorce Attorney, Principal, Managing Partner, The Law Office of Tiffany M. Hughes, P.C.:

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.

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This blog is made available by The Law Office of Tiffany M. Hughes, P.C. for educational purposes only as well as to give you general information and a general understanding of Illinois law, not to provide specific legal advice. By using this website you understand that there is no attorney client relationship between you and The Law Office of Tiffany M. Hughes, P.C. The website should not be used as a substitute for competent legal advice from a licensed professional attorney in Illinois.  The law changes constantly and we do not go back in time to edit old posts that may be affected by these changes.  If you have any questions about Illinois law, which is the only State this blog and website discusses, please call The Law Office of Tiffany M. Hughes, P.C. for a complimentary phone consultation and do not draw any legal conclusions without speaking to a competent attorney in Illinois first.