Same-Sex Child Custody Disputes

Same-sex parents have the same child custody rights and responsibilities as heterosexual parents. When a marriage or civil union breaks down, they must address the same child-related issues, including child custody, visitation, and child support. Ideally, the parents can come to an agreement. Otherwise, child custody is determined by the court. 

What are the laws on child custody for same-sex divorce in Illinois?

Under Illinois law, the terms “child custody” and “visitation” are no longer used. Instead, divorce law uses “allocation of parental responsibilities” and “parenting time.” Issues that must be addressed in a same-sex divorce involving children include:

  • Allocation of decision-making authority: The law encourages parents to agree on how decisions about important matters concerning the child will be made. These matters include healthcare, education, religion, and extracurricular activities. Courts prefer for both parents to share the responsibility but will allocate it to one parent when appropriate.
  • Allocation of parenting time: Parenting time is the time allotted for a parent to spend with the child. During parenting time, a parent is responsible for caring for the child and making decisions about less significant matters.
  • Parenting Plan: Divorcing parents are required to submit a Parenting Plan to the court, either jointly or separately. If submitted jointly, the plan should outline the agreements the parents have reached as to decision-making authority and parenting time. If the parents cannot agree and file separate Parenting Plans, the court will decide on these issues based on the best interests of the child.

Inability to adopt

In same-sex marriages, one spouse may bring a child into the marriage. The other biological parent must terminate his or her parental rights before the non-biological parent can adopt the child. Adoption may be important to give a parent authority to make decisions regarding the child and establish full parental rights to seek parental responsibilities and parenting time in case of a divorce. 

In vitro fertilization or surrogate birth

Some same-sex parents may encounter legal hurdles in child custody matters concerning children who were born by a surrogate or via in vitro fertilization. These couples may also have nontraditional custody arrangements created before same-sex marriage was legalized.

How can parentage be established in same-sex relationships?

Under existing Illinois law, joint adoption is the only way a male same-sex couple has of creating dual parentage over a child. However, the spouse of a woman who gives birth to a child can become the child’s legal parent in one of several ways:

  • If the biological mother of the child is married at the time of birth, it creates a legal presumption that her spouse is the child’s other parent.
  • If the child is conceived during a marriage of the biological mother and the child is born less than 300 days after the end of the marriage, it establishes parentage of the former spouse.
  • The biological mother marries after the birth of the child and the new spouse agrees to be named on the birth certificate as the child’s parent.

Beermann LLP in Chicago and the Chicagoland area has a team of more than 40 talented divorce and family law attorneys. Our firm was established in 1958 and we are known for achieving exceptional results. When everything is at stake in a child custody dispute or other important family law matter, we are the law firm in which to reach out.