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Why does your legal parental status matter in LGBTQ divorce?

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Going through a divorce is never easy, but it’s additionally complicated if you were in a LGBTQ relationship. The Supreme Court ruling that lifted the ban on same-sex marriage in all states also opened the door for divorce.

In LGBTQ divorce, family courts struggle deciding child custody. The state of Illinois now calls child custody the “allocation of parenting time and responsibility.” Family courts look out for the child’s best interests. They also want to preserve parent-child relationships. However, this can be difficult and problematic if only you, or your ex-spouse, is the legal parent.

Does the law recognize you as a legal parent?

If you and your ex-spouse chose to have a child, you’ve invested in the child and truly want to be parents. Unfortunately, your desire to be a parent may not be enough to legally include you in the allocation of parenting time and responsibility agreement. Instead, they look at if you are the biological parent, or if you are a legal parent through second-parent or joint adoption.

In accordance with the law, a child’s biological mother or father is immediately acknowledged as their legal parent. Even if you’re not the biological parent, you may have received legal parental status through second-parent adoption. If that’s the case, you have the same rights to allocation of parenting time and responsibility as your ex-spouse.

What does it mean if you’re a non-legal parent?

Whether or not the law recognizes you as a legal parent, you probably still think of them as your child and love them as such. Subsequently, you may feel discouraged and upset that you must prove your commitment as a parent in family court.

The Human Rights Campaign outlines some factors courts look at when analyzing your relationship with your child. Based upon their findings, they might identify you as a psychological parent. Here are four important considerations courts use:

  • If you lived with the child
  • If you assumed parental responsibilities without expecting compensation
  • If your ex-spouse (the legal parent) agreed to your role in raising the child
  • The length of your parent-child relationship

Ultimately, Illinois family courts first consider your parental status as legal or non-legal before establishing an allocation of parenting time and responsibility agreement. If you’re the biological parent or have gained legal status through second-parent or joint adoption, you already have rights to your child. However, if you’re a non-legal parent, you may have to prove your relationship with your child in family court.

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