Double Standard Faced by Unmarried Fathers in Illinois

 

What is meant by “double standard”?

In Illinois a biological, but unmarried, father can have both an order requiring him to pay child support for his child, as well as a no contact order denying him visitation privileges.

For unmarried fathers, the burden is on the father to prove that visitation between the two is in the child’s best interest.

Had the biological father been married, visitation rights are presumed and the mother has the burden to restrict visitation. She must show that visitation with the father could seriously endanger the child.

Why is there a double standard?

The Illinois Supreme Court in In re Parentage of J.W., 2013 IL 114817 made the different burdens for married and unmarried fathers Illinois law. The Supreme Court examined Illinois Statutes to determine whether unmarried, noncustodial parents enjoy the same presumptive right to visitation as married, noncustodial parents. They concluded that the statutes did not provide the same set of visitation rights. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) 750 ILCS 5/607(a), which controls the rights of married couples, presumes that visitation with the noncustodial parent is in the child’s best interest. Therefore, the burden is on the custodial parent in a divorce case to prove serious endangerment, in order to restrict visitation.

On the other hand, The Illinois Supreme Court examined 750 ILCS 45/14(a)(1) of the Parentage Act, which deals with paternity cases, and found it established a contrary burden. Once paternity is established under this act, the court may assign visitation privileges for father and child. The Supreme Court interpreted this to mean visitation in these cases is a privilege, not a right. This flips the burden to the father to prove visitation is in the best interest of the child, in accord with the factors laid out in the IMDMA. For a further explanation of these factors, see the “Determination of Custody” and “Best interest factors – Further Explored” sections of this website.

What does this mean for unmarried fathers?

In the Supreme Court’s decision they recognized that this method of prioritizing married father’s rights over unmarried, biological, father’s rights was outdated. However, they felt they had to honor the statutory differences imposed by Illinois Legislatures. They invited the Illinois Legislature to amend the Statutes and remedy this problem. Statutory changes can take several years, so Illinois fathers must work with this double standard for the foreseeable future.

To overcome the double standard, it is important to secure competent, experienced legal council in this area of Family Law as soon as you are faced with a Parentage Case. Due to the multitude of factors that courts have considered in determining a child’s “best interest” an expert attorney in this field will ensure you’re making your case as strong as possible, giving you the best chance to secure the time with your child that you deserve.

This office provides expert legal advice in the field of Parentage Cases and is cognizant of the issues an unmarried father must face in establishing a parenting schedule that is in the child’s best interests. Further, this office will fight to ensure that a father is afforded ample time with a minor child/children, in order to further the bond between a child/children and their father.