How Courts Determine Child Custody Rights in a Same-Sex Divorce

 Posted on October 09, 2023 in Divorce

As society evolves, so too does the definition of family. Same-sex marriages are now recognized and protected by law in many parts of the world, including Illinois. Parental responsibility matters come to the forefront in a same-sex divorce as they would in any other divorce case. Illinois prioritizes the best interests of the child when determining parental responsibilities and rights.

Illinois recognizes various legal avenues to establishing parenthood. The court emphasizes the child's best interests in parental responsibility allocations. Consulting an experienced divorce attorney can be invaluable in navigating these complexities. It can also help to ensure that the child's well-being remains at the forefront of the legal process.

Parental Responsibilities

Determining parental responsibilities requires the recognition of at least one legal parent under the Illinois Parentage Act. In a divorce, parents either agree on a parenting plan or the court decides one for them.

Biological Parentage for the Mother

There are laws in play for same-sex couples involving a child's birth mother. These laws determine whether the mother’s spouse can become the child's legal parent, granting the spouse parental responsibilities. Under the Illinois Parentage Act, if an individual qualifies as a child's parent then they are presumed to be a child's legal parent. This presumption ensures that they keep parental rights even in the event of a divorce. As such, they will legally share the duties and responsibilities associated with parenting.

What About the Birth Father?

When a child's birth certificate has the name of the birth father, the same-sex spouse of the birth mother may consider adopting the child. This would then result in a termination of all parental rights, but only if the birth father agrees to give them up. This adoption process may also apply if a child's birth father meets any of the conditions outlined in the Illinois Parentage Act.

Yet, in scenarios involving male same-sex couples, the legal rights differ from those of a spouse in a birth mother scenario. Both men in a couple must adopt a child to establish themselves as the child's parents. Of course, if one of the men is already recognized as the child's established parent, only the spouse needs to adopt the child. This is important to ensure that both fathers retain parental rights after a divorce; without officially adopting a child, the child’s legal relation to her fathers can become very complicated, opening the door to heartache for everyone. 

Contact a Chicago, IL Same-Sex Divorce Attorney

While state and federal laws have made strides toward legal equality for same-sex couples, specific challenges may still arise during divorce proceedings. Legal recognition of parenthood and the allocation of parental responsibilities are essential aspects to consider when children are involved. A skilled Cook County, IL same-sex family law and divorce attorney from The Law Offices of Curtis Bennett Ross, L.L.C. will approach your same-sex family law matters with compassion, empathy, and respect. Call the office today at 312-984-1514 for a free limited consultation.