Parentage cases involve parents never married to each other. By virtue of biology, the determination of motherhood is made at the time of the child’s birth.

The law makes no distinction as to whether or not the woman is married to the father of her child. If a woman gives birth to a child, she is deemed to both the legal and biological mother of that child. As such, the law automatically vests her with all the rights and responsibilities associated with parentage without regard for her marital status.

The law is significantly different for Dad.

Fathers who were never married to the mothers of their children have different rights than fathers divorced from the mothers of their children.

In cases where both parents are unmarried at the time of a child’s birth, Illinois law provides a Voluntary Acknowledgment of Parentage form which can be signed before the child leaves the hospital. By so doing, the parties are clearly establishing the identity of the child’s biological father and preserving the father’s legal right as a parent of the child.

Certain rights and responsibilities attach upon designation as the “legal” father. For example, child support is an obligation owed to children by both parents, and the right to receive child support belongs the child. A parent cannot waive a child’s right to support. If the parents never married (to each other), however, there is no legal right of visitation without a court order. This is merely one of the significant differences between the rights of divorced fathers and rights of unmarried fathers. An unmarried father may find himself responsible for paying child support, without having the right to visitation with his child. Timing is critical. Although Illinois law allows unmarried fathers to petition for custody and visitation of their children born out of wedlock, an original child support order (in a Paternity case) creates the presumption that the parent receiving child support has custody of the child being supported.

There is the legal presumption that any child born during the course of a marriage is the child of the marriage. If a child is born to a married woman, the legal presumption is that the child is the biological son or daughter of the husband. This presumption can have harsh results for the biological father if the child is a result of an extra marital affair with a married woman. If that is the case, the biological father must immediately take steps to establish himself as the legal father or forfeit any legal right to participate in the life of his child.



This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney.
Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.

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