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How Does Child Custody Work in an Illinois Same-Sex Divorce?

Gavel and gay marriage rings on white background

As of 2015, same-sex marriage has been legalized in every state around the country. With the influx of same-sex marriages in recent years comes the inevitable addition of same-sex divorces and attendant issues. The rules regarding custody for same-sex couples can be more complicated, as the circumstances typically involve alternate forms of parentage such as adoption or the use of surrogates. Rules on adoption and custody for same-sex couples are, unfortunately, not as clear as the rules for marriage, and they can vary by state. Read on for a discussion of how custody is handled for same-sex couples in Illinois, and reach out to a seasoned Chicago child custody and divorce attorney with any questions or for help in your same-sex divorce proceeding.

Presumption of Parentage and the Illinois Parentage Act of 2015

When same-sex marriage became legal in 2015, the State of Illinois passed the Parentage Act. The Parentage Act outlines how child custody is determined and explicitly uses gender-neutral language to cover same-sex couples. The husband to a pregnant woman, for example, has long been given the presumption of parentage upon the birth of a child; that presumption now applies to the woman’s spouse regardless of whether it is a man or a woman.

For two married men adopting a child, the best route is for both fathers to legally adopt. The spouse of an adopted parent will not automatically be considered a parent, as would the spouse of a pregnant woman.

According to the Parentage Act, a person can be a presumed parent of a minor child in any of the following situations:

  • The child is born while the spouses are married;
  • The child is born after the marriage but within 300 days of the termination (i.e., the child was conceived during the marriage but the parties divorced during pregnancy);
  • Either of the first two situations but where the marriage appeared to comply with the law yet is later declared invalid for some reason (e.g., some technicality prevented the marriage from being official, or the birth happened when same-sex marriage rights were unclear);
  • A person marries the birth mother after the child is born, and that person consents to be added to the birth certificate.

Same-Sex Parents Have the Same Child Custody Rights

Illinois custody law works differently than other states. Under the revised Marriage and Dissolution of Marriage Act, parents allocate “parental responsibilities” rather than “custody and visitation.” Only non-parents get “visitation.” In order to get parental responsibilities, you must have been declared a parent, as discussed above.

Importantly, same-sex parents have the same parental rights as opposite-sex parents. Divorcing same-sex couples will go through the same process to determine parental responsibilities as would opposite-sex couples. Divorcing couples should submit a parenting plan detailing each parent’s rights and responsibilities, such as decision-making authority and parenting time (more or less equivalent to “visitation” in other states).

Get Legal Help to Protect Yourself and Your Children in an Illinois Divorce

If you’re considering divorce in Illinois, contact the compassionate, professional, and experienced Carol Stream family law attorneys at Johnson, Westra, Broecker, Whittaker & Newitt for a consultation on your case at 630-665-9600.

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