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Non-Biological Parents Retain Rights After Same-Sex Divorce

Posted on in Child Custody

Non-Biological Parents Retain Rights After Same-Sex DivorceAn Illinois appellate court recently upheld a lower court decision that the non-biological mother of a child from a same-sex marriage is allowed parental rights after divorce. In the case of In re Marriage of Dee J., the spouses separated seven months after the biological mother gave birth to the child. The court considered the evidence in favor of the non-biological mother to be clear. The couple was married at the time of the child’s birth, and the non-biological mother was active in the child’s parenting. However, the case shows how a biological parent from a same-sex divorce may try to use the non-biological parent’s status against him or her.

Establishing Parentage

Illinois law assumes that it is in a child’s best interest to have two parents whenever possible because it provides greater financial and emotional support for the child. Even if not biologically related to a child, a person can be a legal parent to a child if:

  • The person was married to the biological mother at the time of birth;
  • The child was conceived during the marriage and is born less than 300 days after the end of the marriage;
  • A child was born or conceived during a marriage that was later ruled invalid; or
  • A new spouse agrees to be named a parent after the child’s conception or birth.

In the recent case, the non-biological mother clearly qualified as a legal parent because she was married to the biological mother during conception and birth.

Parental Involvement

The biological mother in the recent case argued that the non-biological mother had a negligible bond with the child. Establishing a parent-child bond is not a requirement to be a legal parent, but it can help determine the allocation of parental responsibilities. However, the biological mother’s claim was unfounded because the non-biological mother had been heavily involved in the birth and childcare, including:

  • Agreeing to become a parent through her spouse’s artificial insemination;
  • Helping pick the sperm donor based on her physical characteristics;
  • Administering hormone shots to the birth mother;
  • Helping choose the child’s name;
  • Holding joint celebrations for the child’s birth; and
  • Sharing parental responsibilities after the child’s birth.

Same-Sex Parents

Illinois parenting laws do not limit your parental rights based on your gender or whether you have a same-sex marriage. A Kane County family law attorney at Goostree Law Group can defend your parental rights after your divorce or separation from your child’s biological parent. To schedule a free consultation, call 630-584-4800.


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