How Can LGBTQ Parents Protect Their Rights to Child Custody?

 Posted on February 15, 2022 in Child Custody

As American and global culture has changed in recent years, more and more people are recognizing that families come in many different forms. In many cases, same-sex, transgender, and non-binary parents play the same role as those in “traditional” opposite-sex couples, including working together to raise children. Because the U.S. Supreme Court has recognized marriage equality, LGBTQ couples have the right to be legally married, and they also have the right to terminate a marriage through divorce. However, if a couple has children, they may encounter some unique concerns as they address issues related to child custody, and in these cases, a parent may need to work with an attorney to make sure their parental rights will be protected.

Legal Parentage in LGBTQ Families

For some couples, the question of paternity may come into play during legal proceedings that address child custody. If one partner is a child’s biological parent, the other partner may be concerned about whether they are also considered the child’s legal parent. According to Illinois’ paternity laws, if a person gives birth to a child, that person’s spouse will be presumed to be the child’s legal parent. This is true regardless of the gender of the biological parent’s spouse. A person who was formerly married to the biological parent may also be presumed to be the child’s parent if the couple’s marriage ended within 300 days before the child was born.

LGBTQ couples have multiple other options for becoming parents, including surrogacy and adoption. A surrogacy agreement between a child’s intended parents and the child’s biological mother will usually supersede paternity laws, and the surrogate mother (and, in some cases, the other biological parent) will not be considered the child’s legal parent in these cases. When LGBTQ parents adopt a child, either as part of a surrogacy agreement or through another arrangement, they will become the child’s legal parents, ensuring that they will have the right to share child custody in the case of a divorce or the end of an unmarried partnership.

During a child custody case, the focus will be on protecting the child’s best interests. If both parents have been involved in raising the child, performing caretaking activities, and making important decisions about issues such as education and medical care, they should be able to continue in these roles. Courts will usually be looking to find solutions that will allow the parents to continue to work together to make decisions for their children, while also ensuring that children will be able to spend reasonable amounts of parenting time with each parent.

One complication that may arise in LGBTQ child custody cases involves situations where only one partner is a child’s legal parent, such as when one partner is a biological parent or adopted the child on their own. Spouses or partners who do not have legal parental rights may struggle to maintain a relationship with a child, even if they have acted in a parental role during the child’s life. To prevent this issue, LGBTQ parents are encouraged to complete the adoption process and ensure that both partners are a child’s legal parents, which will protect their parental rights in the case of a divorce or breakup.

Contact Our Will County LGBTQ Family Law Attorneys

If you need to address child custody issues as a partner in an LGBTQ relationship, or if you want to take steps to ensure that you have parental rights toward your child, The Foray Firm can help you understand your legal options. We will provide guidance and legal representation in these matters, ensuring that you will be able to maintain a close relationship with your child, no matter what happens. Contact our Markham child custody lawyers at 312-702-1293 to discuss your issues in a confidential consultation.

Sources:

https://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3638&ChapterID=59

https://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2086&ChapterID=59&SeqStart=8300000&SeqEnd=10000000