Same-sex couples who have children together have special concerns when it comes to custody in a divorce. Since Illinois legalized gay marriage in 2014, the same divorce and child custody laws apply to both straight and same-sex marriages.
However, these couples often have considerations related to adoption, in vitro fertilization and legal parentage if they decide to divorce. The state addressed these considerations in the Illinois Parentage Act of 2015, which also updated the custody statutes with gender-neutral language.
When a woman gives birth to the child, Illinois law automatically presumes her male or female spouse to be the child’s other parent. This also applies to children born within 30 days of marital separation or dissolution. In a 2018 ruling, Illinois courts found that one woman had parental rights to the child her former wife had by in vitro fertilization. By the same token, if one man is the child’s biological father, his male spouse is legally the child’s other parent.
When a same-sex couple adopts children together in Illinois, the law considers both individuals the child’s biological parent. When same-sex spouses marry after one has a biological child, the second spouse only becomes the legal parent if he or she adopts the child. In this case, the child’s other biological parent must agree to terminate parental rights unless he or she has already done so.
If both divorcing spouses are the child’s legal parent, both have a responsibility to provide financial support until the child reaches adulthood. In addition, the couple must agree on the allocation of parenting time. Both legal parents have an equal right to custody in the absence of a history of abuse or neglect.
Problems can arise when a same-sex couple acts as parents to the biological child of just one spouse. If this child predates the marriage, the nonbiological parent will not have the right to time with the child in the event of a divorce. Legal adoption can preserve these rights and relationships.