Dealing with child custody during a divorce is often a complicated and frustrating process. Although there is the perception that children are more likely awarded to the mother, state law gives married parents joint legal and residential custody of a child born of the marriage.
When it comes to divorce between same-sex couples, questions may arise concerning the state’s definition of parental responsibilities and parenting time.
Illinois allocation of parental responsibilities
The divorce process for same-sex couples is the same as that for spouses of the opposite sex, with some slight variations. According to the Illinois Parentage Act, there is a presumption of parental responsibility if the spouse of the birth mother meets the following criteria:
- Marriage at the time of birth
- Child’s birth occurred within 300 days of the divorce
- Spouse married the birth mother and consented to inclusion on the birth certificate
Meeting one requirement affords equal rights with parenting time and responsibilities. If agreements through a parenting plan do not occur, the court decides these matters using the criteria used for heterosexual couples.
Parental responsibilities with non-biological parents
Should same-sex partners have children and one or both partners are not biological parents, legal adoption determines equal parenting rights. A child can only have two legal parents under Illinois law, which can impact issues with adoption. The biological parent of a child must surrender his or her parenting right for both partners in a same-sex marriage to legally adopt the child.
Custody determinations are the same for same-sex couples as they are for opposite-sex couples. Differences in the process could deal with the biological relationship to any children of the marriage.