The attitudes of Illinois family law judges about how children should be raised, and their time divided between parents, have changed significantly over the last fifty years or so. Judges used to believe, and rule–almost universally–that children needed to spend the majority of their time with the mother, and that the mother was inherently more nurturing, involved and dedicated to their children than fathers. This was one area of law where fathers were at a distinct disadvantage in family court, especially if the parents were not married.
Further, some judges believed that unmarried fathers were incapable of raising their own children. In 1972, this issue was raised in Stanley v. Illinois, a landmark parenting case that began here in Illinois wherein an unmarried father had to fight to be able to raise his own children after their mother passed away. Sadly, even though Mr. Stanley had always been an active parent for his children, the lower courts had denied him the ability to raise his own children because he was an unmarried man. The courts were biased both in their opinion that a father could appropriately raise his children without a mother, and that unmarried fathers should be entitled to the same rights as married fathers. The Supreme Court’s decision not only awarded Mr. Stanley custody of his children but recognized that fathers have not only had the ability but the constitutional right to parent their own children regardless of their marital status. This landmark case opened many doors for fathers who had been routinely pushed out of their children’s lives, both by former partners and the judicial system. The result was a sea change in how the rights and responsibilities of fathers are adjudicated here in Illinois, and across the nation.
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Top 4 Questions About the Rights of Fathers in Child Custody Cases
At our Chicago family law firm our attorneys advocate for fathers every day. Here are four of the most common questions we are asked by fathers seeking to maximize their parental responsibilities and parenting time with their children.
1. What Are My Rights as a Father?
Today, the idea that a court would deny an unmarried father the right to raise his own children seems completely backwards, which speaks to just how much family law has evolved. Now that courts recognize that fathers have the same constitutional rights as mothers, both in terms of their right to spend time with and make decisions about the children. On its face, the laws in Illinois favor fathers having equal parenting time and joint decision-making. As a father, you can petition for equal time and decision-making authority and be confident that the judge’s ultimate decision will not rest on the fact that you are a man, or whether you and the other parent were married. Equal parenting time and decision-making authority reflect the law’s evolution away from the concept that children need their mothers or women to serve as primary caregivers. Further, the law has moved away significantly from the assumption that women should have more time with the children, and more say as to how the children are raised, based solely on gender and gender stereotypes. Instead, the Illinois law now recognizes the idea that both parents are equally capable of raising happy, healthy children, regardless of gender or marital status. This is good news for fathers that want to be actively involved in their children’s lives.
2. How Often Should a Father See a Child?
Ideally, most judges want both parents to see the child on either a weekly or bi-weekly basis. Judges prefer consistent schedules where the child sees both parents frequently. To the extent possible, the courts want children to be able to have meaningful time with a father wanting to have a regular and consistent presence in their child’s life.
Though it is possible for parenting to exercise equal parenting time, and many do, not all parents are equally involved in the care of their children. The parenting time schedule is often created using both the history of the parents’ involvement and their desired schedule for time with their children. If a parent wants equal, or significant, parenting time with a child, the judge is going to first look at how involved that parent was in the past. If there is a lot of evidence of the father being involved, that will support giving the father greater parenting time. Alternately, if there is documentation of the father trying to be more involved, and those efforts being denied by the mother, that can also provide the foundation for greater parenting time for the father. In short, the judge is going to look primarily at the effort that the father has made in the past to spend time with the child when looking at setting a parenting schedule. If a father is looking to increase his parenting time, the most important thing he can do is spend all the time he can with the child and request that his parenting time be increased. If the father doesn’t exercise all of the parenting time he already has with his child, the judge is not going to expand that time further.
3. Can a Mother Stop a Father from Seeing a Child?
Both parents have equal rights to spend time with their children under the law. However, without judicial intervention, it is certainly possible for the mother to refuse the father’s request to spend time with the child with little recourse for the father. Sadly, it is not uncommon for the parent that the child resides with, the residential parent, to refuse to allow the other parent time with the children. Residential parents often base access to the child on their own schedules/convenience or sometimes use it (inappropriately) as leverage for money. Without the court’s intervention, there is really nothing to stop the residential parent from making decisions unilaterally.
Once the court is involved, however, the judge will ensure that the father receives parenting time unless the other parent expresses significant, verified concerns about the child’s safety or well-being with the father. In those instances, the parenting time could be supervised by a family member or professional supervisor or other restrictions. Generally, even in those circumstances, the court will find a way to ensure that both parents have regular time with the child with the goal of increasing the father’s time with the child and reduce the restrictions, over time.
4. Can a Father Win Custody of a Child in Chicago?
Any Chicago father who wants parenting time with their child is going to receive it under the current laws in Illinois unless the father presents a serious and ongoing safety risk to the child. Having the court involved means that neither parent will have the ability to exclude the other parent from the child’s life, as the judge will seek to facilitate a meaningful relationship between the child and both parents.
When deciding a parenting time schedule, the judge will be looking at the fitness of both parents, the history of each parent’s involvement in child, whether one parent has been alienated from the child, and whether the parents have been able to co-parent during the child’s life. In evaluating those issues, it is certainly possible that a father would be chosen as the parent with majority parenting time with the child. However, it’s critical to understand that even if the judge does find that the mother should retain majority parenting time, she will no longer have unilateral decision-making over when, how, and whether the father is able to be involved in the child’s life.