Non married fathers rights in Illinois - Mothering Forums

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#1 of 31 Old 09-03-2008, 04:38 PM - Thread Starter
 
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I was wondering if anyone could help me out with information about fathers rights in Illinois. My husband has a three year old son, with his ex whom he was never legally married to. She initially left him, and the baby, about two years ago and then later came back and and they have since been splitting time with him 50/50, we have him four days and she has him four nights. Now just last week she just kind of sprung on us that she is planning to move away, and wants to take their son with her. Besides the fact that my husband has a hard enough time spending just half the week away from him, she has generally been pretty unreliable and irresponsible.

They had no formal or legal custody arrangement in place, but his name is on the birth certificate. Does anyone know if she can legally remove him from the state with no consent from my husband? Also does anyone know any sites where we can get info about what the laws are? We''d love to speak to a lawyer about the situation, but with me expecting a baby in Dec money is very very tight right now. We will borrow money if we have to, but if anyone knows any low cost or nonprofit family lawyers in the chicago area that we could speak to, any info would be really appreciated!

Thanks
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#2 of 31 Old 09-03-2008, 04:54 PM
 
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I don't know the laws in IL... but I do know in PA, MA and MI that the Mother cannot just leave the state if there is an identified Father.

His name on that birth certificate gives him equal rights to that child.

I'd definitely talk to a lawyer about legal action to stop her before she disappears.

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#3 of 31 Old 09-03-2008, 04:57 PM
 
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This doesn't say it out like I have seen on PA and MI sites... but I bolded what is important and can be useful:

http://www.helpyourselfdivorce.com/i...d-custody.html

Quote:
Illinois Laws on Best Interest of the Child.
(750 ILCS 5/602)
The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including the following guidelines:

1. The wishes of the child's parent or parents as to custody of the child;

2. The wishes of the child as to custody;

3. The interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child's best interest;

4. The child's adjustment to his home, school and community;

5. The mental and physical health of all individuals involved;

6. The physical violence or threat of physical violence by the child's potential custodian, whether directed against the child or directed against another person;

7. The occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986, whether directed against the child or directed against another person; and

8. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

Looks like they expect both parents to play a big role in the child's life... you likely can stop ex from moving out of state.

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#4 of 31 Old 09-03-2008, 05:25 PM
 
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It sounds like you'll have to take it before a judge or sign an agreement with mom and have the court approve it.

IME, when there is no CO and the parents share custody, either parent can take the child.
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#5 of 31 Old 09-03-2008, 05:26 PM
 
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If there is no legal agreement she can legally leave with the child. A court may make her return but that would be a lengthy process. If I were you I would have your husband file something immediately for custody in the court. You should be able to research how to do it pro bono, the people at family court can probably help tell him what forms,etc., he needs. At least if something is started in court she cannot legally leave with the child. If you can afford it I would get an attorney to file an emergency motion to stop her from leaving.

Good luck, I hope for the child's sake they stay put.
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#6 of 31 Old 09-03-2008, 08:29 PM
 
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We have had a similar situation, but in a different state. We were told to petition for joint custody, and from there we would be routed to mediation, and hopefully the ex would show and cooperate, if not, then we would have to go before a judge to get the parenting agreement in place.
Also, in our state we would be doing this through the juvenile court system, and the parents wouldn't have lawyers at the mediation point, but the child would be appointed one.
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#7 of 31 Old 09-04-2008, 04:12 AM
 
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I don't know about Illinois, but CA says you can't leave the state without the other parent's written consent. I agree with everyone else who says file papers now, if not sooner. Do not wait until she files papers.
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#8 of 31 Old 09-04-2008, 10:17 AM
 
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I don't know about IL.

Here in WI, an unmarried father has NO custodial rights unless/until they're established by a court. That's true even if paternity is acknowledged by both parents at birth, and the father's name is on the birth certificate.

Now, voluntary paternity acknowledgement gives the father the *right* to seek legal custody and placement, just like it would a married father, but the difference is a married father gets these rights automatically at the child's birth, where an unmarried father has to go to court (even if he and the mother are living together, raising the child together, and mutually supporting the household and its residents). But by the time the unmarried father got to court, the mother could be in another state, which she has the legal right to do until custodial rights are established--and judges are reluctant to require a mother to move back under those circumstances. Once the order is in place, the father has the right to object to a move (and the court will decide if the father objects).

It's an archaic system, really.

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#9 of 31 Old 09-04-2008, 03:14 PM
 
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sorry, nak...

on tuesdays in the daley center dowtown, on the family court floor, there is free legal consultation available. i am not sure what the pro bono guidelines are.

illinois is a pretty good state for dad's rights. good luck!
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#10 of 31 Old 09-04-2008, 03:33 PM - Thread Starter
 
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Thanks to everyone responces so far. That is pretty much what i was thinking, that he should have some sort of legal custody agreement in place through the courts for protection. Actually i've been telling him them since we got together, as I know his ex can be pretty unpredictable with her actions.

I am going to check out the free legal consultation at the Daley center. And we'll start looking for a lawyer, just to guide us through the process. It really is so sad that in this day and age the system is still so biased against fathers.
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#11 of 31 Old 09-05-2008, 01:25 AM
 
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don't gt discouraged... dh has sole custody of his 2 boys, and has since the boys were 9 months and 23 months , respectively. we live here in chicagoland, and spent a lot of time down at the daley center!

it can be done. he has rights. he deserves to be with his son. don't be discouraged!

good luck!!!
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#12 of 31 Old 09-05-2008, 10:45 AM
 
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Quote:
Originally Posted by julesdsm View Post
Thanks to everyone responces so far. That is pretty much what i was thinking, that he should have some sort of legal custody agreement in place through the courts for protection. Actually i've been telling him them since we got together, as I know his ex can be pretty unpredictable with her actions.

I am going to check out the free legal consultation at the Daley center. And we'll start looking for a lawyer, just to guide us through the process. It really is so sad that in this day and age the system is still so biased against fathers.
I am sure others will disagree but the statement above that I bolded is not accurate. These days if a father asks for custody, visitation, etc., he typically gets it if all other things are equal. Meaning if they were a two parent home, both parents working and giving equal care to the children. In many districts the bias is strongly against mothers.

Your husband has done nothing legally so you have no basis to make that statement. My guess is if he files for keeping the arrangement the way it is it will be granted with no problem. It is his responsibility to pursue a legal custody agreement, having not done so and now being in this position having to panic about what to do does not equal bias against fathers in the court system.

I do wish you luck.
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#13 of 31 Old 09-05-2008, 11:26 AM
 
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I wouldn't say the bias is strongly against mothers either.

I know here most primary cases are still awarded to the Mother for no other reason, than she is the Mother. *shrugs*

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#14 of 31 Old 09-05-2008, 12:06 PM
 
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Originally Posted by JSMa View Post
I wouldn't say the bias is strongly against mothers either.

I know here most primary cases are still awarded to the Mother for no other reason, than she is the Mother. *shrugs*
I don't agree in most counties. Mothers are more often the primary caregiver, many of them are SAHMs, they are given custody more often because the court doesn't want to take the kids away from their primary caregiver.
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#15 of 31 Old 09-05-2008, 01:25 PM
 
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Where do you live that it is mostly SAHM's?? *blinks*

Where I live everyone has to work... there is no possible way to afford even a tiny one bedroom on one person's salary here.

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#16 of 31 Old 09-05-2008, 01:39 PM
 
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Originally Posted by cycle View Post
I don't agree in most counties. Mothers are more often the primary caregiver, many of them are SAHMs, they are given custody more often because the court doesn't want to take the kids away from their primary caregiver.
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Originally Posted by JSMa View Post
Where do you live that it is mostly SAHM's?? *blinks*

Where I live everyone has to work... there is no possible way to afford even a tiny one bedroom on one person's salary here.
I said many and I live in the same are that you live in (if your location is correct). In cases where the father is "fighting) for primary custody, unless the mom was a SAHM, the father will typically be granted it over the mother. If all things are equal and the father fights for custody he will typically get most of what he is asking for including primary custody. If all things are equal.
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#17 of 31 Old 09-05-2008, 01:54 PM
 
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Apparantly DH, my Uncle, and a few of my friends all had crap lawyers then. *blinks*

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#18 of 31 Old 09-05-2008, 02:01 PM
 
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Apparantly DH, my Uncle, and a few of my friends all had crap lawyers then. *blinks*
Its been my experience through research I have been doing (for a project). Everyones' experience is not always going to be the same.
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#19 of 31 Old 09-05-2008, 02:22 PM
 
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Do you have links to your information for your research? I'd be very interested in looking more into this, as all my real experience has been quite the opposite.

DH's lawyer told him flat out there was no way in hell he would get primary cutody when he first went to her back in the day.

For reference his ex is not a SAHM and never was.. she had DSD in daycare at 6 weeks old. Both make about the same amount of money... DH has always been an involved Dad going to doc visits, dance, etc.

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#20 of 31 Old 09-05-2008, 03:41 PM
 
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Originally Posted by JSMa View Post
Do you have links to your information for your research? I'd be very interested in looking more into this, as all my real experience has been quite the opposite.

DH's lawyer told him flat out there was no way in hell he would get primary cutody when he first went to her back in the day.

For reference his ex is not a SAHM and never was.. she had DSD in daycare at 6 weeks old. Both make about the same amount of money... DH has always been an involved Dad going to doc visits, dance, etc.

I can't release it now, its still in process and is not in a coherent form. I will try to find links of others experiences if I can.

To give you a vastly different perspective; when I went to see a lawyer after ds's father filed for custody I was told that if he asked for primary custody that he would more than likely get it. I was told this by two lawyers. Our background is that ex was basically a sperm donor, we were not married and he has never, even up to that point, had any part in caring for ds. Never paid child support or any other expenses and has never spent a night with ds, never had him in his car, never taken him anywhere, nothing. We went to court, he got overnights immediatly and about half time as a temporary order and was not ordered to pay cs. I was stunned, ds up until that point was ebf and ex had no clue how to take care of him. He never acted on any of it, not once. That has been about three years and he has never seen ds since then, and doesn't pay child support. I now have sole legal and physical custody (he agreed to it). He was retaliating against me for not getting back together with him (his words and threats) and once he saw it didn't work he just dropped it.

I have interviewed attornies and researched court record statistics and it is not uncommon. He had a pitbull, nasty attorney who knew the court system and the judges. I could not afford a great attorney back then.

FTR - there is nothing wrong with me that would make me an unfit mother and nothing was made up so that had nothing to do with the judges decision.
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I have never seen a father be awarded "full custody" or "primary custodial parent" unless the mother agrees to it or the mother has proven herself to be unfit .
Just like I have not seen a mother awarded "full custody" unless the father has agreed to it or the father has done nothing legally to fight it ..

More often if the father asks for it the courts award fathers ,
Joint Legal and/or Joint Custodial (Joint custodial does not always mean equal time)

At one time we had my step-childrens mother as the "custodial parent" but we had "joint legal" with my husband (the father) having the final say on all decisions..

So anything can happen if worded right and asked for and proven in the children's best interest ..
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#22 of 31 Old 09-05-2008, 03:55 PM
 
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Wow! That is insane Cycle! I am so sorry! That is pretty messed up!


We do have joint custody... but my DH had talked to three different lawyers and all told him there was no way he'd get primary.

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#23 of 31 Old 09-08-2008, 02:29 PM - Thread Starter
 
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Yes, i agree that IF he files for for custody then it is fair system. However, point was that a mother is automatically given those rights, without having to do anything legally. I personally think both parents should legally have equal custody rights at birth, regardless of whether they are the mother or father.






Quote:
Originally Posted by cycle View Post
I am sure others will disagree but the statement above that I bolded is not accurate. These days if a father asks for custody, visitation, etc., he typically gets it if all other things are equal. Meaning if they were a two parent home, both parents working and giving equal care to the children. In many districts the bias is strongly against mothers.

Your husband has done nothing legally so you have no basis to make that statement. My guess is if he files for keeping the arrangement the way it is it will be granted with no problem. It is his responsibility to pursue a legal custody agreement, having not done so and now being in this position having to panic about what to do does not equal bias against fathers in the court system.

I do wish you luck.
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#24 of 31 Old 09-08-2008, 02:37 PM - Thread Starter
 
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Where do you live that it is mostly SAHM's?? *blinks*

Where I live everyone has to work... there is no possible way to afford even a tiny one bedroom on one person's salary here.
I agree, We live in chicago and i personally only know a couple mothers who have the luxury of staying at home with their kids. In our case, my husband and i spend far more time with his son being that the four nights his mom has him she drops him off at day care between 7am and 6pm.
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#25 of 31 Old 09-10-2008, 12:27 AM
 
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I agree with what most posters said- in most states if the father has been identified and has been part of the child's life then the other parent cannot leave.

The father is DEFINITELY going to have to go to court now and ask for either SOLE or JOINT CUSTODY with primary caregiver status. Alot of people have mentioned that this might be difficult to obtain but what works in his favor is that she abandoned the child for the first two years and the father was the ONLY caregiver. The father will definitely need to have proof of this- records from doctors, employment and tax records that show the child as a dependent, letters from family, etc.

DO IT NOW before she skips out with the child, then it will become 100% more harder for you and he to claim custody. Even if she changes her mind, still go to court and have something legal.
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#26 of 31 Old 09-10-2008, 11:26 AM
 
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Yes, i agree that IF he files for for custody then it is fair system. However, point was that a mother is automatically given those rights, without having to do anything legally. I personally think both parents should legally have equal custody rights at birth, regardless of whether they are the mother or father.
If the parents are married then this is the case, they have equal rights to the child. If they are not how could the mother not be the one with default custody? In some cases the father may be unknown for sure, may not be named on the birth certificate. Any guy could walk in and say the child was theirs and gain custody. That wouldn't make sense. Its not a big deal for either the mother or father to file for custody. BTW, even though the law states that the mother has default custody, if the presumed (on the birth certificate) father takes the child the police will not intervene at all. The mother will be instructed to file something in family court. So ultimately it doesn't matter.
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#28 of 31 Old 09-10-2008, 01:05 PM - Thread Starter
 
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I actually just found out that since august of 1996 in order for a fathers name to appear on the birth certificate the father must 1) be married to the mother or 2) both parents must sign an "acknowledgement of parentage" or paternity before the baby leaves the hospital.

This is supposedly to protect the fathers rights, but really it just means that he is legally recognized as the father. But even though he is legally recognized as the the father, it seems that custodial rights still belong to the mother by default. From the information I've gathered so far though, it seems that even with this in place, unless the father goes to court for custody or visitation rights, the mother still does not have to let the father see the child, although the father will still have to pay child support.

So with this information at hand , it looks like we're going to court. It seems like my husband is leaning towards petitioning for full custody, since it seems like joint custody will really not change that much about the situation, but we'll have to meet with a lawyer asap to come up with the best plan for everyone.

Thanks for everyone's encouragement!





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If the parents are married then this is the case, they have equal rights to the child. If they are not how could the mother not be the one with default custody? In some cases the father may be unknown for sure, may not be named on the birth certificate. Any guy could walk in and say the child was theirs and gain custody. That wouldn't make sense. Its not a big deal for either the mother or father to file for custody. BTW, even though the law states that the mother has default custody, if the presumed (on the birth certificate) father takes the child the police will not intervene at all. The mother will be instructed to file something in family court. So ultimately it doesn't matter.
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#29 of 31 Old 09-10-2008, 01:06 PM - Thread Starter
 
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Thanks! i'll check it out
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#30 of 31 Old 09-10-2008, 03:04 PM
 
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In some states, as soon as the paperwork is filed and the other party is served with the custody papers, neither parent can leave the state with the child without the other parent's permission or a court order allowing it. I have no idea if this is the case in your state, but the lawyers would know. Even if that is not the default in your state, the lawyers might be able to file something requesting the court to order that she can't leave the state with the child.

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