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.

Frozen Embryos and a Father’s Rights - Chicago, IL

Frozen Embryos and a Father’s Rights

By M. Scott Gordon

If a couple freezes embryos in the hopes of one day having a baby, what happens if the couple breaks up or files for divorce and only one spouse still wants to become a parent? In a recent Chicago case, a former boyfriend and girlfriend are facing this issue, according to an article in the Chicago Tribune. Karla Dunston wants to use the embryos to become a mother, while her ex-boyfriend, Jacob Szafranski, doesn’t want to become a father. What are a father’s rights in a case such as this one?

History of the Recent Embryo Case

Back in 2009, Dunston, who is a medical doctor in Chicago, starting dating Szafranksi, who’s a paramedic, firefighter, and nurse. Shortly into their relationship, Dunston was diagnosed with lymphoma. In order to fight her cancer diagnosis, Dunston had to undergo chemotherapy. Medical professionals told her that her treatments likely would make her infertile. Since Dunston wanted to have a baby, she decided to have her embryos frozen and asked her then-boyfriend, Szafranski, to provide sperm to allow her embryos to be fertilized before being frozen.

Given that Dunston and Szafranski had to make a decision quickly due to the need for Dunston’s chemotherapy, the two agreed to freeze the fertilized embryos prior to Dunston’s treatment. They decided to do this despite the fact that “neither thought the relationship had long-term prospects.” When the embryos were frozen in March of 2010, both Dunston and Szafranksi signed an agreement stating that “no use can be made of the embryos without the consent of both partners.”

Szafranksi now doesn’t want to become a father. In court, Szafranksi argued that the consent form makes clear that both he and Dunston must agree—at any point—about how the embryos will be used, and since he doesn’t want to be a father, Dunston shouldn’t be able to have the embryos implanted. To counter Szafranski’s argument, witnesses for Dunston recalled Szafranski emphasizing that he wanted to help Dunston to become a mother at the time he donated his sperm.

The Cook County Circuit judge originally ruled in favor of Dunston, indicating that “her interests in being a mother outweighed Szafranski’s desire not to be a father.” Szafranski has appealed.

First Case of Its Kind in Illinois

Earlier this month, the Illinois Appellate Court heard oral arguments concerning the frozen embryo case. According to the article in the Chicago Tribune, the outcome “could set a precedent for how disputes over frozen embryos are resolved” in Illinois, and it could have a significant impact on fathers’ rights issues in the state.

Szafranski’s attorney has emphasized that this case is “the first of its kind in Illinois to deal with what you do when two people who create an embryo disagree with how to use them or when to use them.” Given that thousands of embryos are frozen in Chicago each year, this case will help to determine what will happen when the sperm donor no longer wants to become a father.

Complicated questions arise when couples are considering divorce or are dealing with other family law matters. If you have concerns about your rights as a father (or a father-to-be), you should speak with an experienced Illinois family law attorney at M. Scott Gordon & Associates as soon as possible.