custody when parents not married

Who Has Allocation of Parental Responsibilities or “Custody” When Parents are Not Married?

One of the most common questions that arises when parents are not married is who has custody of the child. If those parents are in Illinois and told custody is now called “allocation of parental responsibility” it can become more confusing.

Are Parental Responsibilities the same as Custody?

In Illinois, we have completely abolished the word “Custody”. The term “custody” referred to two different things: (1) physical possession of a child, or where a child primarily resides, and (2) legal decision making for the child.

We now have abolished physical custody in Illinois and replaced the legal term with “Parenting Time”. Parenting Time refers to the schedule of where the children live and spend time on very specific days. It is simply a schedule. This has replaced physical custody or residential custody in Illinois.

Allocation of Parental Responsibilities have replaced “legal custody” in Illinois, or decision making for the child. The person who has Allocation of Parental Responsibilities makes decisions for the child. There are four main areas where decisions must be made, which the court can allocate to one or both parents: (a) education (b) health care (c) religion and (d) extra-curricular activities. The parents being allocation “decision making” for these specific items have replaced the term “custody”.

That being said, things can become very confusing when parents are not married, as to who has parenting time and who has been allocated parental responsibilities.

Who has Allocation of Parental Responsibilities When There is No Marriage and No Court Order?

When there is no marriage between the parties and no court order ordering someone to have parental responsibilities, and no one has signed a voluntary acknowledgment of paternity (a “VAP”) the mother typically is presumed to have Allocation of Parental Responsibilities. The mother can bring an action against an alleged father, or a father can petition against the mother for a finding of parentage. If the mother is married, then the child born to the mother is presumed to be a child of the marriage, which can be rebutted by someone who may believe they are in fact the father of the child.

Voluntary Acknowledgment of Paternity

What if the father signs a Voluntary Acknowledgment of Paternity?

The Voluntary Acknowledgment of Paternity, or a “VAP”, is a document that the father can sign at the hospital to put his name on the child’s birth certificate, when the child is born to an unwed mother. This is a presumption of paternity under law. However, signing the VAP does not guarantee parenting time or an allocation of parental responsibilities. For an allocation of those rights, the father signing the VAP would have to petition the Court and request an Order of Parentage, as well as a parenting time schedule and an allocation of parental responsibilities. Signing the VAP can also make the father responsible for child support, which you can learn more on our website and blog.

It is generally best for all parties to file a court case when the parents of a minor child are not married. The court case can enter a straightforward order indicating a parenting time schedule, decision making for the minor child (an allocation of parental responsibilities) a holiday schedule, and more. It also would include a formal finding of parentage. This ensures that the parties know exactly what their schedule would look like in the event that they are no longer together, an exactly who makes what decisions for the minor child. It is in the best interests of all parties involved to have some certainty when it comes to their child.

Agreed Allocation of Parental Responsibilities and Parenting Time Judgment

Allocation of parental responsibility and custody when parents are not married do not always have to be contested, litigious cases. Parties can enter into an Agreed Allocation of Parental Responsibilities and Parenting Time Judgment, which they can work out together. Our office often drafts these documents for parties, and they can be entered as an uncontested matter before the Court at one court appearance.

At Anderson & Boback, we’re passionate about solving family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today – we’re here to help when you concerns about allocation of parental responsibilities or custody when parents are not married.

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