Who Gets Child Custody During a Same-Sex Divorce?

 Posted on March 29, 2017 in Child Custody

With the legalization of same-sex marriage also came the need for same-sex divorce. Many aspects of divorce law are used equally in heterosexual and homosexual divorces. However, same-sex divorce is new territory, and decisions in cases often set new legal precedents.

Child custody (or the "allocation of parental responsibilities") is one of the trickiest parts of same-sex divorce because the process of having a child is more complicated than in a heterosexual relationship. Only one parent can claim biological rights to the child. With adopted children, the legal process of the adoption becomes important in determining parental rights. There are no laws specifically addressing same-sex divorce and custody. More general laws and court decisions are the best determiners of how a case will play out.

Biological Parent

When same-sex spouses have a child biologically, one parent is designated as being the biological parent, and the other is designated the second parent. The biological parent is either the woman in a lesbian marriage who gave birth to the child or the man in a gay marriage who provided the sperm sample for the surrogate. When spouses get divorced, the biological parent has automatic decision-making rights and parenting time. The secondary parent may also gain parenting rights, but only if he or she was legally established as a parent of the child.

Adopted Children

When same-sex spouses adopt a child, custody during a divorce can depend on whether the child was jointly adopted. If the parents jointly adopted the child, then both are legal parents with equal rights during a divorce. In Illinois, divorced parents are given the opportunity of equal rights to raising their children. If only one parent adopted the child, that is the only legal parent, and the other parent may not have any decision-making or parenting time (visitation) rights.

Illinois Precedent

One 2015 Illinois Supreme Court decision about an adopted child’s custody can be seen as an example for same-sex parenting cases. Note: This is before the January 1, 2016 "allocation of parental responsibilities" law change. In this case, the following occurred:

• A man sought custody rights to his former wife’s adopted daughter. Though he never adopted the daughter, he claimed he was functionally her parent during the marriage.
• The ex-wife claimed the man did not have custody rights because he was not legally the girl's parent.
• The Supreme Court ruled that being functionally an adopted child's parent does not grant custody rights during a divorce.

The ruling shows that the second parents in same-sex marriages should legally adopt their children, if possible, to guarantee decision-making and parenting time rights after a divorce.

Your Custody Rights

Whether you are separating from a same-sex or heterosexual marriage, you need legal guidance in determining your child future and best interests. Our Kane County child custody lawyers at Goostree Law Group can lead you through the process. Call 630-584-4800 today for a free consultation.

Source:

http://www.divorcesource.com/blog/determining-parentage-in-sam-sex-marriage/