Three or four decades ago, a mother was typically granted full custody of her children if she and her husband got a divorce. The father would usually be awarded visitation rights, and he may have been able to see his kids every other weekend or possibly a couple of days during the week. In today’s world, attitudes toward parenting have changed. Fathers are more likely to be given equal decision-making responsibility for children, and they have the right to parenting time. While this is usually true, many fathers still feel that they are not treated the same as mothers when it comes to the allocation of parenting time and parental responsibilities. In order to protect fathers’ rights, there are some specific issues that fathers should pay attention to when getting a divorce:

Parenting Rights

In the state of Illinois, the courts encourage divorcing parents to come to an agreement on parenting time and decision-making responsibilities on their own. This can be done through the parents themselves or with help from a mediator. If they are unable to come to an agreement, the court will make decisions for them based on what is in the child’s best interests. 

Both parents are legally entitled to have a reasonable amount of parenting time with their children. If a father played a significant role in raising and caring for children while married, he should be able to continue having this same relationship with them following the divorce. The only reason a court can restrict parenting time is if there is clear evidence that spending time with a parent would endanger the child’s physical, mental, emotional, or moral well-being. 

There is arguably no relationship more sacred than the one between a parent and child. For children, solid, loving relationships with their parents are crucial for their healthy development and well-being. Because of this, many states, including Illinois, have placed a specific emphasis on allocating parenting time to both parents of a child, rather than solely to one parent. Though it may not always be a 50/50 split, most cases involve both parents having parenting time with their children, and it is typically in the child’s best interests to spend time with both parents. However, there may be cases in which the court finds that it is necessary to place restrictions on parenting time.

When Are Parenting Time Restrictions Appropriate?

The Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5) specifically states that both of a child’s legal parents are presumed to be fit to care for their child, and in the vast majority of cases, the court will not restrict or limit parenting time. When children are involved in a divorce or a parental dispute, the duty of the judge and the court is to ensure the child is being taken care of adequately. If the court finds that the physical, emotional, or mental well-being of the child would be seriously endangered by allowing a parent to exercise parenting time, the judge can restrict parenting time for that parent.

How Can Parenting Time Be Restricted?

Before it is determined that a parenting time restriction is in the best interest of the child, a hearing will be held. During such a hearing, the court will do its best to investigate the situation and determine if spending time with the parent in question would truly endanger the child. The court will examine issues such as each parent’s work schedule, living arrangement, and any history of domestic violence, mental health issues, or substance abuse.

When a couple gets married, it is not at all uncommon for a spouse to take her partner’s last name as a symbol of their union. Some partners choose to hyphenate their surnames so as to keep their own identity while adding their spouse’s name to theirs. When a marriage comes to an end, it is relatively easy—and usually part of the standard divorce paperwork—for a spouse who changed her name to change it back during the proceedings. But, what about the children of a divorcing couple? It turns out that changing the name of a minor child in Illinois may be more complicated than most people realize.

What Does the Law Say?

Most legal details surrounding marriage and divorce are governed by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), but name changes are typically made in accordance with the Illinois Code of Civil Procedure (735 ILCS 5). The statute provides that changing the name of a minor child will only be approved if the court finds “by clear and convincing evidence that the change is necessary to serve the best interest of the child.” A separate provision in the Illinois Parentage Act of 2015 (750 ILCS 46) allows for a child’s name to be changed if both parents agree, though this law is typically utilized in cases of unmarried parents or when parentage is in question.

Considerations of the Court

According to the law, when considering a name change for a minor child, the court is required to take into account all of the relevant factors of the case, including:

Legally recognizing your child’s father, in a process known as establishing paternity, is important for a number of reasons. Your child is entitled to know their biological father, have a relationship with him, and know his family history. Your child is also subject to financial benefits from their biological father, such as social security benefits, health and life insurance coverage, veteran’s benefits, and any inheritances. Proving paternity is not a difficult process if all parties cooperate. Voluntary Acknowledgment of Paternity (VAP) is a form that both parents complete to establish who the child’s father is when the parents are not married. If the parties do not cooperate, you can turn to court orders for DNA testing to prove who the child’s father really is. However, for alleged fathers who recently passed away, the process can become slightly more complex.

DNA Testing

With modern technology, it is possible for you to determine your child’s father even after his passing. It is still relevant to make this legal determination for your child’s knowledge and for any financial legacy that your child may be subject to. When proving paternity using DNA testing, the child, mother, and possible biological father will all submit to DNA sampling, often through a cheek swab or blood test. Since the child is half made up of the mother’s genes, the alleged father’s genes must match up with the other half. This is a quick and definitive test that a medical professional can perform and send to the court for evidence.

You may think that since your child’s alleged father passed away, all attempts at definitively knowing his father are gone. Luckily, DNA testing can be performed on the man’s immediate family members and be used to make this determination. Since men have XY chromosomes, and women have XX chromosomes, one can test the males of the alleged father’s family to see if the Y chromosome matches your child’s Y chromosome. The Y chromosome is passed, unchanged, down the male line, and is different once the male lineage is broken. In other words, if you have a son, he will have the same Y chromosome as his father’s father and brothers. For female children, the testing would be the same, but the alleged father’s female family members would be submitted to these tests.

Coming to a settlement that both parties agree to can be challenging even in the most amicable divorce. There are many important factors to consider, including division of assets and debts, spousal support, child support, parenting time, and parental responsibilities. Couples who are considering a prenuptial agreement or who already have one in place may expect that it will prevent any major disagreements in the event of a divorce, but it is important to keep a few things in mind about how a prenup may actually impact the divorce proceedings.

A Prenup Can Ease Financial Negotiations in a Divorce Settlement

Under Illinois law, a prenuptial agreement can address a variety of important financial considerations that are likely to come up in a future divorce. Couples can determine which of their properties will be considered marital and non-marital assets, which may be beneficial if one or both spouses have family heirlooms or businesses that they want to retain. Couples can also agree as to how assets and debts will be distributed in the event of a divorce, as well as whether any spousal support will be paid.

If both spouses entered the prenuptial agreement in good faith, divorce settlement negotiations regarding finances often proceed smoothly, especially if the divorce is amicable. Because there are few, if any, additional property decisions to be made, divorcing couples have more time and energy to focus on other aspects of the separation.