How Are Parental Responsibilities Handled in a Same-Sex Divorce in Illinois?

 Posted on March 09, 2022 in Family Law

While Illinois state and federal laws have made significant progress in legal equality for same-sex couples, there are still unique challenges that same-sex couples may face when getting divorced. Although many same-sex couples who separate are officially married, not all couples decided to get married once it was an option and separating can prove difficult when children are involved. If you are in a same-sex relationship and you are considering divorce or separation, you may want the help of an experienced Illinois family law attorney who can help you consider the various legal aspects of splitting up with your partner.

Have You Established Parentage?

If a same-sex couple is legally married, the question of parentage is simpler. But, if you have not married your partner, you may want to take steps to establish parenthood before seeking separation. Here are five ways parenthood is legally recognized in Illinois:

• A child is born to a legally married couple who stays married
• The couple was married when the child was born, but the marriage was later invalidated
• The child was conceived during the marriage and born no more than 300 days after the divorce was finalized
• The couple was married after the child was born, but both parents are the biological parents of the child and agree to be on the child’s birth certificate
• A partner or spouse adopts their partner’s child, or both spouses adopt a child together

If you are a spouse or former spouse of the biological mother of a child, you may be presumed the parent. For male same-sex couples, one father must adopt the biological child of his partner or both spouses must adopt the child (for example, if the child was born through IVF). If a partner in a same-sex relationship had a child with a heterosexual partner who still has parental rights over the child, the child may not be adopted by a third parent.

Parental Responsibilities

Illinois no longer uses the word “custody” as it relates to children of divorced or separated parents. Instead, “parental responsibilities” and “parenting time” are allocated to each parent whenever appropriate. Parental responsibilities is a term describing the authority to make important decisions on behalf of the child, and parenting time is the time each parent spends with the child.

Before anyone can have parental responsibilities allocated to them, they must be a legal parent of a child. However, even if someone is a legal parent, he or she must present a court with a parenting plan in a divorce. While all couples are encouraged to create parenting plan together, if they cannot agree, they may each submit their own parenting plan and present the court with evidence for why their proposed plan would be in the child’s best interests. When making decisions about parental responsibilities, the court will always consider the child’s best interests first and foremost.

Meet with a Lombard Divorce Attorney

Illinois law treats divorce the same for same-sex couples as for heterosexual couples, and you deserve a divorce attorney who does as well. To get help from an experienced DuPage County divorce attorney in a comfortable, judgment-free environment, call the team at Mevorah & Giglio Law Offices today at 630-932-9100 to schedule your free consultation.