Child custody matters can be complex and emotionally charged. When custody problems come up, they can be made more difficult when the parents are unmarried and there is no court order in place. The first question clients with this problem ask is often, “who has custody of a child if there is no court order in Illinois?”
In the state of Illinois, the determination of who has custody of a child in the absence of a court order is a critical aspect that can significantly impact the lives of both parents and children. Understanding the legal framework is essential for parents facing such situations.
Custody Laws for Unmarried Parents (Establishing Custody)
If the mother and father of a child are unmarried, and the couple goes to court for custody issues, then the court will have to determine paternity. Paternity is a legal term used to describe the parental rights a parent has over their child.
Until paternity is established, the mother of the child has sole custody. Sole custody means one person, in this case the mother, has full legal and physical custody of the child. Because the mother gave birth to the child, it is already established that the mother has paternity.
A father needs to establish paternity through a court-approved method to get his rights to the child unless he is married to the mother. This could be done through a DNA test for the father and child or testimony from both the mother and father.
If paternity is established, parents will have equal rights to the child. Illinois law assumes both parties are fit to parent the child and should have parenting time. This means both parties will get parenting time unless there is a legitimate reason for not allowing a parent parenting time, or if doing so would not be in the best interest of the child.
Who Has Custody?
As established above, if you are a parent, then you have paternal rights. However, just because someone has parental rights doesn’t mean they have custody. Once the issue of child custody reaches the court, judges have the power to create a parenting plan.
According to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/602.5), the judge has to consider various factors to determine a parenting plan, commonly referred to as child custody. Some of the factors include:
- The best interests of the child
- The wishes of each parent regarding parenting time.
- The child’s adjustment to their home, school, and community.
- The mental and physical health of all individuals involved.
- The level of cooperation between the parents.
- Any instances of domestic violence or abuse.
- The willingness and ability of each parent to encourage a close and ongoing relationship between the child and the other parent.
Sometimes clients have asked “Can You Sign Over Custody of a Child Without Going to Court in Illinois?” While there are many factors a court must keep in mind when coming to decisions, just like those listed above, it is possible under certain circumstances to sign custody over without going to court. Follow the link above to learn more.
Impact on Custody
In the absence of a court order, these factors become crucial in determining who has custody of the child. While parents may informally agree on custody arrangements, a court order provides legal recognition and enforcement mechanisms. Without such an order, either parent may technically have legal rights to the child, leading to potential disputes and challenges.
If a judge decides, given the facts and evidence that come out in trial, that one parent is unfit to parent, or that it would be in the best interests of the child to be with one parent more than the other, then some parents may have limited parenting time. Especially when substance abuse or physical/emotional abuse is present, courts have the power to enforce supervised parenting time or give sole custody to the other parent. Judges must keep the best interests of the child in mind when coming to these decisions.
Termination of Parental Rights
In Illinois, parental rights can be terminated in a variety of ways. These ways include:
- Voluntary Surrender of Parental Rights: Giving a child up for adoption, parents must terminate their parental rights first.
- Found to be Unfit to Parent: If a parent is deemed unfit to parent through a court order, then their parental rights can involuntarily taken away.
- Not the Biological Father: If the court finds through a paternity test that the alleged father is not the biological father of a child, the paternal rights the father thought he had can be taken away.
Parents that are found to be unfit to parent may still have to pay child support or alimony. This will depend on your state’s rules and regulations.
Seeking a Court Order:
If you are an unmarried couple with a child, it would be in your best interests to seek a court order. To avoid confusion and ensure the best interests of the child are prioritized, parents are encouraged to seek a court order to establish formal custody arrangements. This legal process involves presenting evidence and arguments based on the factors outlined earlier (750 ILCS 5/602.5).
One tool many couples use in lieu of traditional court proceedings is mediation. Mediation involves a neutral mediator that works with parents allowing them to create voluntary and custom parenting plans. Attorneys are not necessary for mediation, but an attorney can help ensure your parental rights are upheld. These plans, after agreed upon by both parents, can be taken to the court for enforcement.
Conclusion: Who Has Custody Of A Child If There Is No Court Order In Illinois?
Navigating child custody matters in Illinois without a court order can be challenging and may lead to uncertainty for both parents and children. Understanding the relevant statutes, such as the Illinois Marriage and Dissolution of Marriage Act, is essential for parents seeking clarity and legal recognition of their rights and responsibilities. Consulting with a family law attorney can provide guidance and support throughout the process, ensuring the best interests of the child remain at the forefront of any custody determination.
MEET WITH AN ILLINOIS FAMILY LAW ATTORNEY TODAY
The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Who Has Custody Of A Child If There Is No Court Order In Illinois?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information about Who Has Custody Of A Child If There Is No Court Order In Illinois.
Published by Dustin Koth on January 30, 2024
