Parental Rights of Unmarried Fathers

Parental Rights of Unmarried Fathers

By: M. Scott Gordon

Shifting societal norms and ever-changing lifestyles in the twenty-first century mean that fewer couples are making the decision to get married. To be sure, many couples feel that marriage no longer is a necessary step they must take in order to have children. But what does this trend mean for unmarried fathers when the parents decide to separate? What are a father’s rights when he’s not married to his child’s biological mother?

Unmarried Fathers Have Constitutional Rights

Historically speaking, unmarried fathers haven’t always been thought to have the same rights to their children as unmarried mothers. However, this historical notion has shifted dramatically over the last several decades. Indeed, unmarried fathers have brought lawsuits to assert their rights to children who were adopted without the father’s consent and to children with whom the father has had a substantial relationship.

Although a biological connection isn’t necessarily enough to give an unmarried father the right to have a "relationship" with his child, it’s typically sufficient to allow the father to show that he has developed and maintained a substantial relationship with the child. For instance, an Illinois case from the 1970s that eventually went to the U.S. Supreme Court, Stanley v. Illinois, significantly impacted the constitutional history of unmarried fathers’ rights. In that case, the Court determined that unmarried fathers should have the opportunity to establish that they plan to be involved in the upbringing of their biological children.

Determining Parenthood

What makes a biological father a “parent” under the law? The U.S. Department of Health & Human Services and the Administration for Children & Families offers a useful handout that explains the different ways that states across the country determine parenthood when there’s an unmarried father and mother. In Illinois and about half of the other states in the country, the law says that a man is presumed to be the father of a child if one of the following circumstances exists:

• The father is or was married to the child’s mother, and the child was born during the marriage or within a specific time period after the marriage ended; 
•  Prior to the child’s birth, the father attempted to marry the mother but the marriage isn’t valid. In such a case, if the child was born during the “invalid” marriage or within a specific time period after the marriage ended, the father may still be the legal parent of the child; 
•  The father is listed as such on the child’s birth certificate; 
•  The father acknowledged his paternity in writing; and/or 
•  The father is obligated to pay child support because of a court order or a voluntary agreement.

If there’s not a presumption of paternity, how can a father establish his rights? Under Illinois law, any man who is presumed or is alleging to be the father of a child (or a child that hasn’t yet been born) can bring a lawsuit to establish the paternity of the child. In addition to the father, other people who can bring an action like this include the child, the mother, a pregnant women, a person or agency with custody of the child, and in some cases the Department of Healthcare and Family Services.

It’s important to remember that unmarried fathers have rights when it comes to their children. If you have questions about child support, child custody, or another family law matter, contact an experienced Chicago child custody attorney at the law offices of M. Scott Gordon & Associates today.