Without a Court Order in Illinois, Who Has Custody of a Child?

 Posted on November 26, 2024 in Family Law

As of 2018, one in four parents living with a child in the U.S. were unmarried. This figure was driven by an overall decline in marriage and an increase in births outside of marriage. The 2018 numbers are a dramatic change from decades ago when only 7 percent of parents living with their children were unmarried.

When a couple divorces, the allocation of parental responsibilities is a part of the divorce process. But what happens when you were never married to the father of your child, and you are now separated? Or suppose your ex has taken your child to another state and is refusing to return the child until he is ready?

Since there is no formal agreement sanctioned by a judge, do you have any recourse in such a situation? Should you contact law enforcement? If you find yourself in such a situation, speaking to a St. Charles, IL allocation of parental responsibilities lawyer from Mirabella, Kincaid, Frederick & Mirabella, LLC can help.

Which Parent Has "Custody" of a Child When There Was No Marriage?

The determination of which parent has the right to make decisions on behalf of the child when there is no marriage depends on several issues. Illinois law for unmarried parents gives the mother the right to make all decisions regarding the upbringing of the child and to have sole custody until the father has established paternity and there is a valid court-ordered agreement in place.  

Simply being named on the child’s birth certificate may seem to indicate paternity, but where rights to the child are concerned, this is not sufficient. To establish paternity, the father must do one of the following when he is not married to the mother:

• A Voluntary Acknowledgement of Paternity (VAP) form can be filled out at the hospital. Both parents must sign the form and then ensure it is filed with the Department of Healthcare and Family Services.

• An Administrative Paternity Order can be filed through Child Protective Services.

• The court can issue an Order of Paternity via a DNA test.

Only when the father’s parental relationship with the child has been legally established can the unmarried father petition the court for parental rights and parenting time. This is an important distinction. Just having paternity legally established does not give the father automatic custody or joint custody of the child.

If the Father Takes a Child Without a Custody Order, Is It Kidnapping?

Under the Illinois Criminal Code, a father who has not been granted parenting time who conceals a child without the consent of the mother has committed a Class 4 felony, which can be punished by jail time, a substantial fine, or both. This is true whether the father’s paternity has been legally established or not. Child abduction laws in the state make the mother the default custodial parent until there is a court-ordered arrangement in place.

In the scenario above, a father who removes the child to another state – or anywhere, for that matter – without a valid custody agreement signed by the court could be charged with kidnapping, which could affect his rights to the child in the future. A father charged with or convicted of kidnapping the child may not even receive significant parenting time.

Contact a Kane County, IL Child Custody Lawyer

Whether you are an unmarried mother or father, it is important that you have a valid allocation of parental responsibilities agreement in place. As the father, you should never remove the child from the mother’s care until you have the legal right to do so. A St. Charles, IL divorce attorney from MKFM Law can help you determine what your rights are in relation to your child and what steps you need to take to legally establish parental responsibilities. Choosing Mirabella, Kincaid, Frederick & Mirabella, LLC ensures your child’s best interests will always be properly protected. We serve family law clients at our offices in Kane County and DuPage County. Call 630-665-7300 today to schedule your initial attorney meeting.