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Baby Mamma Drama: Changing Visitation Laws for Unmarried Fathers in Paternity Cases

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In a hotly contested case our firm handled throughout 2012, a father absent for 14 years appeared locally and asked for visitation of his then-15-year-old-daughter. The mother had us fight his request for visitation. It was difficult not only because of the intense emotions - especially for the teenager, who did not know her father - but also because of the law. Illinois had divided opinions from around the state's appellate courts. We argued at length over whether the presumption in favor of visitation that applies when people have been married should also apply to unwed fathers. A copy (omitting identifying information) of our brief is HERE (click to read full brief). Just a little while later, the Supreme Court issued an opinion that would have made a huge impact on the case, and which will drastically affect the rights of unmarried fathers who seek visitation after not being around or involved with their child.

In re Parentage of J.W. places the burden on unmarried fathers to prove that visitation is in the best interests of their children. Previously, absent proof of serious endangerment, unmarried fathers had the same right to see their children as fathers who were going through a divorce. This fundamentally changed with In re Parentage of J.W. In that case, the child's mother, Amy, had an affair with a man named Steve while she was involved with another man, Jason. Amy became pregnant and Jason was listed as the father on J.W.'s birth certificate. Jason and Amy were married after J.W. was born and later divorced. Jason was again listed as J.W.'s father during the divorce. Amy received sole custody but Jason was granted visitation and paid child support as part of the divorce.

While surfing social media, Steve came across a picture of J.W. six years after she was born and thought she looked a lot like him. Steve contacted Amy, a DNA test was done, and testing determined Steve to be J.W.'s biological father. Amy and J.W. moved to Steve's hometown and Amy told Jason that he was not J.W.'s biological father. J.W. was first introduced to Steve as a friend and then later as her "real dad." Jason went to court and filed various petitions in order to keep Amy from facilitating a relationship between Steve and J.W. Steve filed a petition with the court under the Parentage Act of 1984. The trial court found that Steve was the biological father after additional DNA testing but ruled that visitation with Steve was not in J.W.'s best interests. Steve appealed the trial court's decision and the appellate court ruled that Steve was entitled to reasonable visitation unless that visitation would seriously endanger the child. Jason then appealed to the Illinois Supreme Court. The high court ruled that the trial court has the discretion to grant visitation to an unmarried father if it is in the best interests of the child.

Two laws, the Parentage Act of 1984 and the Illinois Marriage and Dissolution of Marriage Act, are in play any time custody or visitation of a child born outside of marriage is involved. The laws overlap in many ways but have some critical differences. Under the Marriage Act, the person opposing visitation has the burden to show the court why visitation would seriously endanger the child. The purpose of this heavy burden is to discourage parents going through a bitter divorce from using their children as leverage or an emotional torpedo. Children know and have likely lived with both parents during the marriage. In an action under the Paternity Act, the burden is on the non-custodial parent to prove that visitation is in the best interests of their child. The reasoning behind this rule is that the courts never know at what age a biological father will enter the child's life. There may be little to no contact between the biological father and child before the biological father files a suit. Steve filed his suit shortly after learning of J.W. but she was already 6 years old. The courts were concerned that J.W. would not be able to comprehend that Steve was her father because Jason had been her dad for her whole life. The case will be reevaluated every year until J.W. comprehends that Steve is her biological father.

The moral of this real life saga if you are in Steve's position is to act quickly because the consequences are severe for waiting.

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