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Custody rights in same-sex marriages in Illinois

While the national debate over same-sex marriage was finally settled by the Supreme Court, the issues surrounding custody rights for same-sex parents isn’t as clear. The laws still vary significantly from state to state.

In Illinois, the title of “parent” is decided by the provisions in the Illinois Parentage Act of 2016. As things stand, there are still some significant disparities in the way legal parenthood and custody rights work for same-sex couples.

For example, if a man fathers a biological child with someone other than his spouse, there’s no provision in the Act giving his spouse — of either gender — any parental rights over that child. That means that a male same-sex couple has no means of creating dual parentage over a child except through dual adoption — even if one of those fathers is the child’s biological father.

However, if a woman gives birth to a child, her spouse — regardless of gender — can become that child’s legal parent in one of four ways:

1. The child’s biological mother is married at the time of the child’s birth. This creates the legal presumption that her spouse is the child’s other parent.

2. The biological mother conceives the child during marriage and less than 300 days pass between the end of the marriage and the child’s birth.

3. One of the two previously described conditions applies — except that the couple’s marriage was somehow later invalidated. This covers those situations where the actual legality of a same-sex marriage at the time of the child’s birth or conception was questionable.

4. The biological mother marries after the birth of the child, but the new spouse agrees to be named on the birth certificate as the child’s other parent. This law was clearly designed with heterosexual couples in mind where the parents conceived the child together prior to marriage — but it isn’t written in a way that specifically bars same-sex couples from using it.

It’s important to remember that there are other laws that can also determine parentage. For example, situations involving gestational surrogacy are covered under a wholly separate act.

Overall, the legal landscape for same-sex parentage is still pretty rocky terrain. If you have questions about your rights as a same-sex parent and how that could affect your ability to gain custody, talk to an attorney today.

Source: The News-Gazette, “John Roska: How does custody work in gay marriages?,” John Roska, May 14, 2017

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