The Double Standard of Visitation Rights in Illinois

 Posted on November 24,2014 in Family Law

With the status quo of “traditional” families being amended to include the increasingly more common combinations of families that are now present in American society, certain laws in Illinois are still championing the role of the “traditional” family. One of the most recent laws, which affects the rights of married and unmarried fathers and their relationships with their biological children, creates a double standard that espouses the married, but divorced father, over the rights of the unmarried, biological father.

Recent Case Designating the Double Standard

In a recent case, the Illinois Supreme Court reviewed the standard and burden of proof that would be applied to the biological father regarding his visitation rights with his biological child. In this case, a woman, who was married, had a one-night stand with another man. As a result, she became pregnant and gave birth to a child. The law creates a rebuttable presumption that any child that is begot from a marriage is the child of the husband. In this case, the husband, who was not the biological father, was presumed to be the biological father of the child and paternity was designated to him. The man from the affair, after seeing photos of the child posted onto a social media site, noted similarities between him and the child, and paternity was established between him and the child. The husband, who had been presumed to be the father of the child, later divorced the woman.

The biological father petitioned the court for visitation rights to the child. The standard for determining the rights of the biological father in the face of the husband who had been married to the woman has led to split court decisions, and had to be decided.

Illinois’s Visitation Rights Debate

Visitation rights of the biological father in Illinois have been the subject of a much heated debate in Illinois. Courts have been split on the issue of the type of burden of proof the biological father needs to show to establish visitation rights. Prior to this case, the majority of the decisions within the Appellate level pointed to the “serious endangerment” standard outlined in the Illinois Marriage and Dissolution of Marriage Act, which was applied equally to both married and unmarried, noncustodial parents.

The Serious Endangerment Standard

The serious endangerment standard stated that  visitation rights are in the best interest of the child, except if there is evidence to suggest that visitation would seriously endanger the child. This language suggested that the court felt that visitation from a noncustodial parent, whether married or unmarried, was a right, and not a privilege. The new standard outlined in this most recent case finds that visitation is a privilege and not a right.

The recent case creates a double standard whereby the standard is laxer for those noncustodial parents who were married to the custodial parents. Married, noncustodial parents enjoy the rights of visitation in the face of evidence to suggest serious endangerment of the child, whereas unmarried, noncustodial parents must show that visitation rights are in the best interest of the child. This thereby shows the Illinois courts’ preference for the married, nuclear family in the face of less traditional forms of family.

The “Best Interest of the Child” Standard

The “best interest of the child” analysis weighs factors to assess how a judgment, like visitation rights, will affect the child in question. The analysis looks at the wishes of the custodial parent, the wishes of the child, the past and future relationship between the child and the noncustodial parent, the mental and physical health of the individuals involved, and the presence or absence of past abuse, among other considerations.

Experienced Family Law Attorneys in DuPage County

The new double standard is not as easy to apply as one would think. If you or a loved one is going through a visitation rights dispute, it is important to request guidance from an experienced DuPage County family law attorney at Mevorah & Giglio Law Offices. The attorneys at Mevorah & Giglio Law Offices are experienced in matters relating to divorce settlements, child custody, and maintenance, and additional family law matters. Contact us today to schedule your confidential consultation.