How Does a Same-Sex Divorce Affect Parental Responsibilities?

 Posted on July 25, 2022 in Family Law

While same-sex marriage is now legal around the United States, the unfortunate reality is that LGBTQ couples can still face challenges during their divorce that straight couples do not. Because establishing parentage of a child of heterosexual parents is usually a matter of straightforward biology for both father and mother, establishing custody of a child is an easier process than it can be when a parent in an LGBTQ couple is not the biological parent of a child. 

Of course, a biological parent-child relationship says nothing about the love a parent shares with a child or a parent’s commitment to caring for a child. But when it comes to Illinois law, a parent needs to have a legal relationship with a child to establish parental responsibilities; unfortunately, sometimes a child’s biological parent will try to use this against a non-biological parent in a divorce. 

How Do I Establish Parenthood? 

In 2015, the Illinois legislature signed a new law extending the presumption of parenthood to married same-sex couples who have a child in certain circumstances. For example, if two women are married and one woman gives birth to a child, the other woman is presumed to be the child’s other legal parent. For men, however, although one father may be the biological parent, the child’s other father may still have to go through the adoption process to establish parenthood. Surrogacy agreements can further complicate this process. 

Establishing parenthood is essential before pursuing parental responsibilities and parenting time because, without parenthood, there is no legal right to a relationship with a child. LGBTQ couples who are cohabitating but were never married may find parenthood difficult to establish, which can sometimes have heartbreaking results. 

However, if both parents have established parenthood, then both parents are presumed to have equal rights to the allocation of parental responsibilities and parenting time regardless of the gender of the parent. This does not necessarily mean the allocation of either of these will be equal in the final parenting agreement, but both parents can make an argument for their parental rights in a divorce court. 

Schedule a Free Consultation with a Hinsdale, IL LGTBQ Divorce Attorney

At Law Office of Martoccio & Martoccio, we believe that your relationship with your child is worth fighting to protect. That is why we offer experienced, assertive representation in every area of your Illinois divorce. To schedule a confidential consultation with a DuPage County LGBTQ divorce lawyer, contact our friendly, welcoming offices at 630-920-8855. 

Source: 

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075000050HPt%2E+VI&ActID=2086&ChapterID=59&SeqStart=8675000&SeqEnd=12200000