Fortunately for married same-sex couples in Illinois who have children, the Illinois Parentage Act provides the same protections that were once afforded to fathers in a heterosexual marriage. Traditionally, a man married to a woman who gave birth to a child was considered the child’s legal father. This means that the man could get custody or visitation rights without necessarily have to prove the child was biologically related to him.
This same presumption is now extended to same-sex couples. The Illinois Parentage Act signed into law in 2015 now extends the definition of a presumed parent to a person who was in a marriage or civil union at the time the mother gave birth to the child, or within 300 days of a termination of the couple’s marriage or civil union. Same-sex parents are also permitted to have both their names on a birth certificate, and there is a presumption that the parents listed on a birth certificate are the child’s parents.
This legal presumption is important when it comes to custody issues in a divorce. Without this presumption, a parent who wants custody to a child would have to prove a legal relationship with the child in order to have standing to seek custody. For example, two women live together without getting married or entering into a civil union. If one woman gives birth to a child, and the women agree to raise the child together, there is no guarantee that the non-biological mother will be able to share custody of the child if the two women split up. A person who does not have standing cannot prevail in a legal challenge seeking rights to custody or even visitation.
Men in a same-sex marriage may still be at a disadvantage even under the revised law because the law does not create a presumption for either man having a child with a woman outside the marriage. Both men would have to adopt the child to gain legal rights. However, if the child is born as part of a surrogacy agreement, there are laws that govern how that situation would be handled.
Once a presumed parent has established that he or she is a presumed parent under any of the criteria set forth in the statute, the parent can be allocated parental responsibility, time-sharing, and even be required to pay child support. The court determines the issues of time-sharing and parental responsibility by considering the best interests of the child.
Contact Us for Legal Assistance
If you are going through a divorce and are worried about the rights you may or may not have when it comes to child custody, you need to contact an experienced family law attorney for more information. Contact an experienced Naperville child custody and visitation attorney at the Roscich & Martel Law Firm, LLC for an initial consultation.