As any parent knows, raising a child is one of the most rewarding challenges one can endure. So what options does a parent have when they find themselves with no rights to the custody or care of their child? This is not an uncommon question in our area of the law.
There are several important things to know for anyone seeking to establish legal parental rights. For obvious reasons, Illinois law treats men and women differently. At the time of birth, a woman is clearly the legal and biological mother of the child. Whether or not the mother is married at the time of the child’s birth has no effect on her legal parental rights. However, the law has different standards in determining the legal rights of the father.
With a child born during a marriage comes the legal presumption that the child is the biological child of the husband and wife. While this is usually a safe presumption, it is still a presumption. In situations where a woman has an extramarital affair, the biological father must act quickly to establish paternity and claim his parental rights. Without timely action, the biological father may endanger his legal right to participate in the life of his child.
In a situation where the child is born outside of a marriage, Illinois law allows parents to sign a Voluntary Acknowledgment of Parentage (VAP). Doing so establishes and protects the rights of the biological father’s legal right to the child.
What Rights and Responsibilities Does the “Legal” Father Have?
Once the legal father has been determined, he is responsible for the financial support of the child if he is not already doing so. Conversely, the child has a legal right to child support which neither parent may waive.
However, in this context, there is yet another difference between married and unmarried fathers. A father who was once married to the mother has a legal right to parenting time with his child, whereas, when the parents never married, there is no legal right for parenting time with the child without a court order. Therefore, a father of the child who never married the mother may be on the hook for paying child support without receiving any parenting time rights.
Who May Bring a Parentage Action?
The child, the mother, a pregnant woman or a man presumed or alleging he is the father of the child or expected child may bring an action to determine the existence (or non-existence) of the parent and child relationship.
If you have any questions relating to parentage action please contact us so we provide further assistance.