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PLEASE NOTE: NextLevel Law, P.C. by Daniel R. Hernandez, Esq. remains open and available to serve you during the COVID-19 crisis. We are offering our clients the ability to meet with us via telephone or video conference. Please call our office to discuss your options.

How is custody determined in an Illinois same-sex divorce?

On Behalf of | Nov 10, 2021 | LGBTQ Law |

While it has been slow going, members of the LGBTQA community are steadily gaining more and more rights like everyone else. While same-sex partnership is now legal throughout the nation, some legal issues are still quite difficult for same-sex couples to navigate. One of these issues is the process of child custody during a same-sex divorce. 

The state of Illinois passed the Parentage Act in 2015 following the legalization of same-sex marriage in the state. This act provides a guideline on how child custody is handled during divorce. The act also includes language that suits same-sex partnerships. 

According to the Parentage Act, a person is deemed to be a child’s parent when:

  • The child was born while both parties were in a marriage or civil union
  • The child was born within 300 days of the dissolution of the marriage or the civil union
  • The child was born during the marriage or the civil union even if it was later established that the union was invalid
  • After the child’s birth, another person interred into marriage with the child’s mother, even if that marriage was invalid

Determining custody

A decision regarding custody in a same-sex divorce is relatively similar to that involving a heterosexual divorce. The Parentage Act allows both parents to sign the child’s birth certificate and develop a parent-child relationship.

Most often, same-sex couples adopt children. When a child is adopted at the same time by both parents, this is known as joint adoption, and both parents have equal rights to custody and visitation in the event of a divorce. 

The legalization of same same-sex marriage brought with it the need to set the rules for child adoption in divorce cases that involve same-sex marriages. Most aspects of heterosexual divorce apply equally in same-sex divorces. However, it is important to understand that same-sex marriage and divorce are new territories, and custody decisions in these cases often set new legal precedents.