How Is Child Custody Determined in Same-Sex Divorce?

 Posted on September 20, 2019 in Visitation and Parenting Time

It has been slow going, but the LGBTQ community is steadily gaining more and more equal rights as everybody else. It has been three years now since marriage between same-sex partners has been legal nationwide, but some legal issues are still more difficult for an LGBTQ couple than a heterosexual couple. In the case of divorce, the process of child custody determination is more difficult for a same-sex couple especially if the child is being shared by two fathers.

Illinois Parentage Act of 2015

When same-sex marriage became legal in 2015, the state of Illinois also passed the Parentage Act which provides a guideline when it comes to child custody. The act includes changes in language to suit same-sex marriages; now, there is a gender-neutral presumption of parentage in that a child can have a relationship with another parent other than its mother, but that adult does not have to be male.

Adoption makes the presumption of parentage a little more tricky, but for same-sex marriages that consist of two males, it is one of the only options if the pair want children. If an adoption occurs, both parents should legally adopt the child so that both can be considered parental figures in the minor’s life.

According to the Parentage Act, a person can be presumed parents of the minor if:

• The child was born during a civil union or marriage
• The child was born within 300 days of the end of the civil union or marriage
• The child was born during a civil union or marriage even if the union is later considered invalid
• After the child is born, the other person enters into marriage - even if invalid - with the minor’s mother

Any of these conditions can be rebutted as long as the attorney has sufficient evidence to fight the presumed parenthood.

How Is Custody Decided?

Coming to a decision regarding custody in a same-sex divorce is very similar to divorce between a man and a woman. The Parentage Act makes things easier for same-sex partners by allowing both parents to sign a child’s birth certificate and for both parents to develop parent-child relationships.

In the case of lesbians, should one child be born to one partner, that woman would be considered the primary guardian and would the court would help decide on a custody agreement; just like a heterosexual couple.

In the case of two gay men sharing a child, if only one partner filled out the legal adoption papers, that man is considered the child’s only parent. Then, that parent would not be required to share custody after a divorce, but the former parent can fight for custody rights. The fight can be messy, that is why both men should legally adopt the child as soon as the decision is finalized.

Contact a St. Charles, IL Divorce Attorney

Going through a divorce is a stressful time. To make things easier, hire a lawyer from Shaw Sanders, P.C. who can make sure you get time with your child when it is all over. To schedule a free consultation with an experienced Kane County child custody lawyer, call 630-584-5550.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3638&ChapterID=59

http://www.cookcountycourt.org/Portals/0/Domestic%20Relations%20Division/Seminar%20Materials/DR.Summary%20of%20Parentage%20Act.pdf

https://www.isba.org/committees/women/newsletter/2016/06/effectofsamesexmarriageonfamilylaw