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
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.