Whether they are divorced from their children’s mother or were never married, biological fathers usually have rights to some involvement in their children’s lives and responsibilities to contribute to their well-being. However, there are many situations in which a non-biological dad may also want to seek fathers’ rights after the relationship with the child’s other parent has ended. For example, you could have been part of a same-sex or opposite-sex couple in which a child was conceived through artificial insemination. You could be an adopted father or stepfather, or you could have raised a child believing you were the biological father and later found out otherwise. From a legal standpoint, these situations are not as clear-cut, but a recent Illinois court ruling has established that non-biological parents can have parental rights under certain circumstances.

Illinois Appellate Court Ruling on Non-Biological Parental Rights

In 2018, an Illinois appellate court heard a case involving a same-sex couple who conceived a child through artificial insemination and later separated. During the divorce, the child’s biological parent sought full custody, while the non-biological parent sought to assert parental rights including shared custody and visitation. The trial court initially ruled in favor of the non-biological parent, and the appellate court upheld the decision on the basis that there was a parent-child relationship and that the couple had made the joint decision to conceive through artificial insemination.

When a child is born to a married couple, both spouses will be considered the child's legal parents. However, when a child is born to an unmarried mother, or when the identity of the child's father may be in doubt, it may be necessary to establish the child's legal parentage. Establishing paternity is important for the child, but it also benefits the father and mother too. For example, legal paternity may need to be established before a court determines parenting time, parental responsibilities, and child support. If you need to address issues related to your child's parentage, speaking with an experienced family law attorney can guide you through your next steps and help you establish paternity.

How Is Paternity Established?

Paternity is the legal establishment of the identity of a child’s father. Simply writing a person’s name on a birth certificate does not necessarily indicate paternity. In fact, paternity can be established in a variety of ways, including:

Many studies have shown that children do best with both parents in their life. Of course, this is not true for situations involving abuse or domestic violence, but generally, removing one parent from a child’s life is damaging to the well-being of that child. Fortunately, many parents who get divorced or who never marry are able to work out a shared parenting arrangement which includes both parents as full participants in their children’s’ lives. Unfortunately, a new study shows that Illinois fathers are at the bottom of the list when it comes to how much time they spend with their children.

Study Analyzes Shared Parenting Schedules Across the Country

The study, which was piloted by a software company that makes apps for divorced and separated parents, involved a compilation of data regarding the most common parenting time arrangements in each of the fifty states. Through a survey of legal professionals and judicial standards across the country, the researchers were able to calculate the average amount of time parents spend with their children. The study only included cases in which both parents wanted custody of their children, and there were no extenuating circumstances, such as long-distance separation or criminal convictions.

Today, more and more couples are choosing to forgo marriage for a variety of reasons. Some are political, others economic, and still others simply out of lack of interest in legally validating the relationship. However, there are some areas of the law in which not being married can actually be a hardship, and the paternity of your children is among the most pressing. If you are not married to your child’s mother, it is imperative that you be aware of your rights going forward, especially if you want to be involved in your child’s life.

Establishing Paternity in Illinois

Illinois law defines paternity and the father-child relationship fairly extensively, and it is important to understand how to proceed. The Illinois Parentage Act lays out a list of methods by which a man’s paternity may be acknowledged and legally verified. Generally, paternity is established in Illinois when:

For many fathers, it can be extremely difficult to maintain an active role in the lives of their children. This is especially true for a father who has gone through a divorce or breakup with his child’s mother. In many cases, it feels like the proverbial deck is stacked against a man when it comes to child custody decisions—now known as the allocation of parental responsibilities under Illinois law. Unfortunately, many such issues are based on the persistent public perception that men are less qualified to serve as primary—or even equal—caregivers for their children.

Anecdotal Examples

Recently, a discussion on the social media site Reddit addressed the various ways that men have experienced sexism in their lives. Many responses dealt with female-dominated work environments, physical abuse at the hands of female partners, and distrust from authorities when a man has been the victim of domestic violence. However, there was a substantial number of responses that described the experiences of men when they are seen in public with children—including their own.

In 2016, changes were made to divorce and parenting laws to better reflect the modern family and ensure the best interest of children were more accurately considered. But, even in light of these changes, there is still much work to be done to protect the rights of fathers. Though studies show they are an integral part in the development and upbringing of children, many fathers still struggle to receive fair consideration in front of a judge. To bring awareness to this problem, single dads recently rallied outside Lake County Courthouse.

One in Three Children Do Not Live With Their Father

According to statistics, approximately one in three American children do not reside with their fathers. Of course, in divorce or in other situations where a parental allocation of responsibilities is necessary, the goal is not necessarily to have the children reside with one parent or the other, but to ensure each parent receives a fair and reasonable amount of time with their child. Fathers, although given more consideration in courts, still often feel as if the scales are not appropriately balanced.

When you are not married to the mother of your child, it may be very difficult for you to exercise your rights as a father. In fact, if you have not established legal paternity, you may not even have any such rights under the law. Your relationship with your child is extremely important, but may be non-existent unless you take action, which begins with establishing paternity.

How Paternity May Be Established

Thanks to the newly enacted Illinois Parentage Act of 2015, you are presumed to be the father of a child if you are or were married to the child’s mother when the child was born or got married after the birth and you are listed as the father on the birth certificate. If the child was born within 300 days of your divorce, you would also be the presumed father. Assuming the presumption of your parentage is not rebutted, you would be considered your child’s legal father, with all of the accompanying rights and responsibilities.

The bond between a mother and her child is undeniable. According to a recent article by Parenting magazine contributing editor and co-author of Magical Beginnings, Enchanted Lives: A Holistic Guide to Pregnancy and Childbirth Deepak Chopra, M.D., a close personal attachment with your child may prevent diseases, boost immunity and enhance the IQ quotient of your child’s developing mind. Dr. Chopra further believes that maternal bonding has evolved into such a complex physiological phenomenon that touches our hearts, brains, hormones, nervous systems or about every component of our physical being. The study included in Chopra’s book, made possible by a grant from Mead Johnson Nutrition, suggests that a strong maternal bond may prove even more powerful than DNA.

But where does all this research leave Illinois fathers trying to establish a paternal bond with their children post-divorce? Recently, the Illinois Fathers Network, founded in 2008 and recently established as a non-profit organization, is trying to answer this question for Illinois fathers and other non-custodial family members by proposing three revisions to current Illinois statutes.

HB5425 Synopsis

According to a new study, there is a growing trend of shared child custody, with fewer courts awarding sole custody of children to the mother.

The study was done by researchers from the University of Wisconsin–Madison. The team examined the data from Wisconsin family courts from 1988 until 2008. They looked at more than 10,000 divorce cases.

In the late 80’s and early 90’s, very few custody arrangements involved shared custody. Instead, the mother was typically awarded sole physical custody with the father awarded visitation, or parenting time.

With a large number of divorced parents remaining in conflict, many children are at risk for psychosocial problems.  One of these problems is parental alienation.  Parental alienation is a situation where a child exhibits an unjustified anger or distain for a parent due to the vilifying of that parent to the child by the other parent.  The noncustodial parent is typically the target.

Clearly, the target parent is being harmed.  Their relationship with the child is being damaged and the time lost with that child can never be regained.  But parental alienation has consequences to the child as well.  According to information Our Family Wizard, parental alienation can be a factor in psychological and behavioral issues for the child, including drug and alcohol abuse, eating disorders, mood disorders, depression, anxiety, and panic attacks.

An article by Douglas Darnall, Ph. D. lists risk factors for parental alienation.  Recognizing early signs of alienation will allow for intervention before the behavior gets worse.  Some of these include:

Michigan Live is reporting that Flint attorney Denise Ketchmark has filed a lawsuit against Genesee Circuit Judge Archie Hayman seeking more than $4 million in child support and other damages. Hayman, who is well known for his insistence on men being held to their responsibilities as fathers, allegedly carried on a secret twenty-year love affair and fathered two children out of wedlock with Ketchmark, all the while shirking his financial responsibilities for the children.

Hayman has responded to the lawsuit by seeking to have the case file sealed from public view, and requesting an order for DNA testing in order to prove his parentage of the children, despite the fact that he previously signed affidavits of parentage for both children and provided medical insurance for them. Ketchmark is opposing these motions, stating that the public has a right to know if Hayman has committed insurance fraud by obtaining insurance for children who he now claims are not his biological children, and that Hayman waived his right to genetic testing when he signed affidavits of parentage.

While this case is noteworthy of media coverage for its focus on public figures in one legal community who might not normally be involved in paternity proceedings, it raises issues that are not so different than any other paternity case. While rules regarding voluntary paternity affidavits or acknowledgements vary from one state to the next, Illinois law provides that paternity is legally established 60 days following the date that a father signs an Illinois Voluntary Acknowledgement of Paternity. Once paternity is established in this manner, it becomes very difficult to seek genetic testing or otherwise legally disprove paternity. Therefore, it remains to be seen whether Judge Hayman will be able to obtain DNA testing under Michigan law.