Child Custody & Same-Sex Divorce in Illinois

On June 26, 2015, the U.S. Supreme Court overturned all state bans on same-sex marriage, legalized it in all 50 states, and required states to honor same-sex marriage licenses from any state. Due to the significant increase of same-sex marriages since then, this trend has also been followed by an influx of same-sex divorces

Regarding child custody rights, the rules can be quite complex for same-sex couples because many of them became parents through either adoption or the use of surrogates. Fortunately, Illinois laws do not discriminate against same-sex parents. 

Illinois Parentage Act of 2015 

When same-sex marriage became legal in 2015, the state of Illinois passed the Parentage Act, which provides child custody guidelines for same-sex parents. Now, there is a gender-neutral presumption of parentage, which applies to the woman’s spouse regardless of whether the spouse is a man or a woman. 

When it comes to two married men adopting a child, both fathers should legally adopt the child since the spouse of the adopted parent will not automatically be considered a parent, as would a pregnant woman’s spouse. 

According to the Illinois Parentage Act of 2015, a person can be presumed parents of a minor child in any of the following situations: 

  • The child was born while the spouses were in a marriage or civil union 

  • The child was born within 300 days of the end of the marriage or civil union 

  • The child was born during a marriage or civil union, but the union was later declared invalid 

  • After the child’s birth, a person marries the birth mother and the individual consents to being added to the birth certificate 

Determining Child Custody for Same-Sex Couples 

Same-sex couples have the same parental rights and responsibilities as heterosexual couples in Illinois. Under the Parentage Act, both parents can sign the child’s birth certificate and build parent-child relationships. 

To obtain parental responsibilities, a person must be declared a parent. Only non-parents get “visitation.” But when same-sex couples adopt a child, this is considered a “joint adoption,” and both parents have equal custody and visitation rights if they file for a divorce. 

Although same-sex marriage has been legal since 2013 in Illinois, the laws surrounding same-sex divorce and child custody can still be complicated. It is imperative to hire an experienced same-sex divorce attorney to guide you through the complexities of the legal process. 

If you are interested in filing for a divorce in Chicago, call the Law Offices of Jonathan Merel, P.C. at (312) 487-2795 or fill out our online contact form today to request a phone consultation. 

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