While same-sex marriage has been recognized in Illinois for some time now, parentage issues for same-sex spouses are an evolving area of law. Illinois is among the first states to offer same-sex spouses the same presumption of parentage that opposite-sex spouses have long enjoyed. In opposite-sex marriage, a child born to the wife is palso presumed to be the husband's child. This presumption exists even if the spouses used a sperm donor or there is another reason to believe that the husband is not biologically the father. In Illinois, the presumption that a child born into a marriage is a child of both spouses has been extended to cover spouses who are of the same sex. 

Having both spouses identified as legal parents to the child protects both spouses in the event of a divorce and also protects the child. If you have concerns regarding the legal parentage of a child, our attorneys can help. 

The Parentage Presumption for Women Married to Women

Two married women now need only to have both of their names placed on the baby’s birth certificate in order to be considered legal parents. In the past, it may have been necessary for the wife who is not a biological parent to legally adopt their spouse’s child. However, now, when a child is born, the spouse of the person who gave birth enjoys the protection of being a presumed parent regardless of their genders. 

The period during which a victim of domestic violence attempts to escape the relationship, often by way of a divorce, can be a dangerous period. Many abusers react strongly to the prospect of losing a person they intend to retain complete control over. There may be an elevated risk of further violence, harassment, or intimidation during the time in which you are making a plan to exit. Seeking an Illinois Order of Protection may be one way to mitigate these risks. Orders of Protection can forbid the abuser from engaging in certain forms of conduct that may have a frightening or harmful effect on you. Your children may also be eligible to receive protection using one of these orders. 

Before you file for a protection order, it is best to speak with an attorney. While many do seek these orders unrepresented, it is important to know that if the abuser will not consent to the order, you may be required to attend a formal hearing where the party you are seeking an order of protection against or their attorney may have the opportunity to question you and vice-versa. These hearings are best handled by a qualified lawyer. 

Terms that May be Included in an Order of Protection

During the process of seeking an order of protection, you will generally have an opportunity to explain to the court what types of terms you would like included in the order. The pertinent terms may vary depending on a number of factors, including the nature of the abuse you have faced and your living situation. Remedies set out by statute which may be available in a protection order include: 

Depending on the circumstances and timing of a child’s birth, some Illinois parents will need to take additional steps to ensure that they are their child’s legal parent. Other individuals are presumed to be a parent based on a legal relationship with the child's mother. If you are a presumed parent, then you will generally not need to take additional steps to designate yourself as a legal parent to the child. In Illinois, biological parentage is not required to sustain a presumption of legal parentage. For example, if a woman is married to another woman who gives birth, both women will be presumed legal parents of the child. The law surrounding parentage is not nearly as simple as it was throughout most of history. 

Everything from new technological developments in reproduction to the long-belated acceptance of same-sex parents has had a noticeable impact on Illinois’ parentage laws. There is a reason that Illinois now uses the gender-neutral term “parentage” rather than the old term, “paternity.” An attorney can help you ensure that you are the legal parent to your child. 

Understanding the Presumptions of Parentage 

When someone is a “presumed” parent, they are automatically treated as the child’s legal parent. One of the simplest ways to become a presumed parent is to be married or in a similar legal relationship, such as a civil union with the mother of the child. 

Alternative dispute resolution methods are often seen as being primarily for spouses who are amicable, or at least on civil terms. It is true that it can be helpful to the process if the divorcing spouses are still on good terms. Spouses who remain friendly can generally have rational, productive discussions about the issues in their divorce case. However, alternative divorce resolution techniques may still be possible for spouses experiencing a high level of conflict. If you and your spouse have reached a point where you cannot stand to be in the same room, much less collaborate and compromise with each other in a productive fashion, your attorney may suggest attorney-facilitated negotiation or a type of mediation that does not bring the spouses together. Using these strategies, it may be possible to settle the divorce without litigation. An attorney can assess your situation and offer you advice on resolving your divorce with the lowest possible amount of stress and conflict. 

A Way of Mediation That Does Not Bring You Face to Face With Your Spouse

In typical mediation, the parties sit down together, joined by their attorneys and a mediator. The mediator then makes efforts to guide the parties toward a resolution, while the attorneys look out for their client’s interests and the spouses discuss the issues in their divorce. This is called facilitative mediation. This may be immensely difficult for spouses experiencing a high level of conflict. If there has been infidelity, abuse, or issues like substance abuse in the marriage, this type of mediation can quickly turn into an argument.  

In another style of divorce mediation, each party sits in a separate room with their attorney while only the mediator moves back and forth. This can prevent direct conflict and lead to a more productive mediation session, as the mediator can keep messages to both spouses on topic. This may be referred to as evaluative mediation. 

It is generally presumed that it is in the best interests of children to have a relationship with both of their parents when the parents are not in a romantic relationship or marriage. However, this is a rebuttable presumption, and in certain circumstances, is negated entirely. Where one parent is causing harm to the child, it is the duty of the other to take steps to protect the child. It is important to understand the legal boundaries of what a parent may and may not do in an effort to keep the child safe. Harm may come in the forms of physical violence, emotional attacks, sexual abuse, neglect, or exposure to an unsafe lifestyle, such as criminal behavior or drug use.

A parent’s behavior need not escalate to the level of legal child abuse offenses to cause significant harm to impressionable children. If you feel that your child’s other parent is a danger to the child’s physical or emotional well-being, there may be steps an attorney can help you take, such as seeking a new parenting time allocation. 

Legal Tips for Mitigating the Harm of a Dangerous Parent

Even for those who were never married to their child’s other parent, the courts of Illinois are open to parents seeking to allocate parenting time and parental responsibilities in a formal legal arrangement. Potential steps that may be helpful depending on the specifics of your situation may include: