Posted on December 8, 2021

Same Sex Parents In An Illinois Divorce

Parents are parents. It does not matter what gender either parent is. When same sex parents divorce those same sex parents use a system of laws originally designed for opposite sex couples. Because Illinois divorce laws are implicitly designed for opposite sex parents, either party can attempt to use those laws to try to shut a same sex parent out of a child’s life.

If an adult is NOT deemed to be a parent of a child, the other parent has a right to exclude that other adult from the child’s life pursuant to fundamental rights established by the Supreme Court Of The United States.

“[I]f a fit parent’s decisions of the kind at issue here [denying parenting time] becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel vs Granville 530 57 at 70

Same Sex Marriage In Illinois

Same sex marriages are treated exactly like any other marriage in Illinois since the Religious Freedom and Marriage Fairness Act was enacted in 2013.

“(a)All laws of this State applicable to marriage, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law, shall apply equally to marriages of same-sex and different-sex couples and their children.
(b) Parties to a marriage and their children, regardless of whether the marriage consists of a same-sex or different-sex couple, shall have all the same benefits, protections, and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law, or any other source of civil or criminal law.” 750 ILCS 80/10

Two parents of the same sex will be treated exactly like any other parent in Illinois by an Illinois family law court. While much of the existing parentage statues reference a “mother” and a “father” it can be argued that the enactment of the Religious Freedom and Marriage Fairness Act modifies all that language. The important thing is establishing exactly who is a parent.

Two Women Parents. Who Is The Mother?

When two women have a child in Illinois and one of the women gives birth to that child, it is clear that the woman who gave birth to the child is the child’s parent. What is the other woman to the child?

“A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship” 750 ILCS 46/204

If two women are married. The non-birthing parent is automatically a parent by virtue of their marriage to the birthing mother.

In a divorce, the birth mother may be tempted to say their wife is not the biological parent of the child and therefore should have no interest in the child.

“An action to declare the non-existence of the parent-child relationship may be brought by the child, the birth mother, or a person presumed to be a parent under Section 204 of this Act. Actions brought by the child, the birth mother, or a presumed parent shall be brought by verified complaint, which shall be designated a petition. After a presumption under Section 204 of this Act has been rebutted, parentage of the child by another man or woman may be established in the same action, if he or she has been made a party.” 750 ILCS 46/205(a)

There is only a 2 year period where the birth mother can make this argument. Then the question is 2 years from when? The birth of the child at the very least but perhaps the conception of the child could also be argued.

“An action to declare the non-existence of the parent-child relationship brought under subsection (a) of this Section shall be barred if brought later than 2 years after the petitioner knew or should have known of the relevant facts. The 2-year period for bringing an action to declare the non-existence of the parent-child relationship shall not extend beyond the date on which the child reaches the age of 18 years. Failure to bring an action within 2 years shall not bar any party from asserting a defense in any action to declare the existence of the parent-child relationship.” 750 ILCS 46/205(b)

Proving that a woman is not the other biological parent may seem biologically obvious but proof is required.

“A presumption exists that a child conceived during wedlock is legitimate. This presumption is rebuttable and can be overcome by irrefragable proof” Santiago v. Silva, 413 NE 2d 139 – Ill: Appellate Court, 1st Dist. 1980

Perhaps judicial notice could be taken that a different woman is not the other mother of a child.

Even if it is proven that the non-birthing parent is not a biological parent, the non-birthing parent can still be judicially recognized as a parent because

“Any individual who is an intended parent as defined by this Act is the legal parent of any resulting child. If the donor and the intended parent have been represented by independent counsel and entered into a written legal agreement in which the donor relinquishes all rights and responsibilities to any resulting child, the intended parent is the parent of the child. An agreement under this subsection shall be entered into prior to any insemination or embryo transfer.” 750 ILCS 46/703(a)

“”Intended parent” means a person who enters into an assisted reproductive technology arrangement, including a gestational surrogacy arrangement, under which he or she will be the legal parent of the resulting child.” 750 ILCS 46/103(m-5)

The sperm donor will have to have entered into a written agreement stating that he has no rights to the child.

“If a person makes an anonymous gamete donation without a designated intended parent at the time of the gamete donation, the intended parent is the parent of any resulting child if the anonymous donor relinquished his or her parental rights in writing at the time of donation. The written relinquishment shall be directed to the entity to which the donor donated his or her gametes.” 750 ILCS 46/703(b)

So, if the donor was just a friend who didn’t go through the formalities of disavowing his parental rights…the intended parent will not be able to exercise their rights as a parent.

“An intended parent may seek a court order confirming the existence of a parent-child relationship prior to or after the birth of a child based on compliance with subsection (a) or (b) of this Section.” 750 ILCS 46/703(c)

Two Male Parents? Who Is The Father?

Marriage probably has no impact on the establishing the paternity of a child who had two fathers because the statue explicitly references marriage to “a mother.”

“A person is presumed to be the parent of a child if: The person and the mother of the child have entered into a marriage, civil union, or substantially similar legal relationship, and the child is born to the mother during the marriage, civil union, or substantially similar legal relationship…” 750 ILCS 46/204

With two male parents, the process was likely much more formal involving a surrogate birth mother who subsequently waived her rights as a parent to the child.

This would immediately trigger 750 ILCS 46/703 in making one or both parents the “intended parent.”

Therefore, it is crucial that the non-biological father establish that he was, in fact, an intended parent.

“[A] court of competent jurisdiction shall determine parentage based on evidence of the parties’ intent at the time of donation.” 750 ILCS 46/703(d)

Adoption And Same Sex Divorce In Illinois

To avoid having to prove who was an intended parent possibly as far as 17 years in the future, the non-biological parent may want to formally adopt the child. Upon adoption, there can be no question that the adoptive parent has the full rights to the child as a parent.

Same sex marriages are just like any other marriage…until they are not. If you’re going through a same sex divorce, contact an experienced Illinois divorce lawyer who knows what your rights as a parent are…and are not.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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