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In this day and age, it has become quite common for men and women to procreate outside of the marital relationship. Whether reproduction occurs intentionally or unintentionally, if no marital relationship exists, the rights and obligations of the parents must be established under the Illinois Parentage Act of 1984.
Until parentage is established, either administratively or judicially, neither party has the right to insist upon the payment of child support, contribution towards medical expense, visitation, or custody (although Mother is presumed the legal custodian until a contrary court order is entered). More importantly, until a formal determination of parentage is established, Dad has no rights and is not recognized as the legal parent.
The effect in failing or delaying the establishment of parentage can be devastating to both parents in the event the unmarried parties separate. For example: Mom and Dad who are cohabitating outside of the marital relationship decide to have a baby. The baby is born in 1995 and the parties remain together until 1997. At that time, Mom and Dad's relationship deteriorates and they take up separate residences. The parties' child primarily resides with Mom however Dad continues to visit the child on a weekly basis and voluntarily provides financial support for his child on a monthly basis until June 1, 2000.
On June 1, 2000 Mom notifies Dad that she intends moving to the sunny state of Arizona with the parties' minor child. Neither Mom nor Dad ever pursued an administrative or judicial determination of parentage during the child's first five years of life.
Prior to May 30, 2000, it was common practice in the State of Illinois for a Father in such a predicament to quickly file a petition to establish the parent child relationship and also to file a petition seeking an injunction to prohibit Mom from removing the child from the state of Illinois. However, on May 30, 2000 the Illinois Appellate Court, First District, handed down a decision in: In re the Parentage of Melton, 1-99-2463 stating that the Illinois Parentage Act of 1984 does not provide for an injunction procedure prohibiting a parent from removing their child from the state of Illinois. The court further ruled that the Illinois Marriage and Dissolution of Marriage Act does provide for such a procedure, but that procedure is not incorporated into the Illinois Parentage Act.
What that means for Dad is that although he has established a factual parent child relationship, and has financially provided for the welfare of his child, he still has no legal rights as to his child until a judgement of parentage is issued by a court of law. Additionally, because of the recent Appellate court ruling Dad is not entitled to an injunction prohibiting Mom from removing their child from the state of Illinois. On the other hand, Mom is in the position of not being able to force Dad to continue his financial contribution towards the support of his child until the legal relationship of parent child is established between Dad and his baby.
Clearly, the implication of the Court's recent ruling can be devastating. By the time Dad works his way through the judicial process, Mom and baby will be enjoying the sweet smell of orange blossoms in the Valley of the Sun while Dad and baby will be denied the parent child relationship which they have enjoyed for the past five years.
It is therefore essential that couples having children outside the marital relationship establish parentage, either administratively in accordance with the rules adopted by the Illinois Department of Public Aid or Section 12 of the Vital Records Act, or pursue the establishment of parentage judicially under the Illinois Parentage Act of 1984.
Without the establishment of parentage, along with a visitation schedule, as provided by Illinois law, the rights that are automatically conferred upon mothers and fathers reproducing within the marital relationship do not exist for the parents of children born out of wedlock. The key under the recent ruling is to establish a visitation order regardless of whether Mom and Dad still reside together. If the parents are together, an order establishing an access schedule can be crafted which is contingent upon a future break-up. Under Melton then, Mom cannot remove the child from the Sate without violating the existing Court order, and subjecting herself to a contempt citation.
Keep in mind, these protective steps can be taken in a non-adversarial fashion!
- - Robert S.Medansky |