Same-Sex Divorce and Custody: Divorce in Chicago

Same-Sex Divorce

“I should have custody of the kids, I’m their mother.” While this has historically been a convincing argument in the eyes of the court, what happens when both parents can make that claim? Or what if neither can, because they are both fathers? What will the courts do then?

With the legalization of same-sex marriage in all states, same-sex divorce is also legal in all states. However, many states are just now facing their first cases of same-sex divorce, and there isn’t a strong precedent in place. In Chicago, same-sex civil unions have been legal since 2011, and same-sex marriage has been legal since 2014. Less than two years have passed, and it takes time to build legal precedent. It is vital to have a committed and knowledgeable attorney on your side to fight for you and set those precedents.

Here are some factors the court considers when determining custody:

Biologic Parentage- If one of the divorcing spouses is the genetic parent of the children, this will generally weigh in that parent’s favor. However, it is not the only factor, and should not be considered a guarantee of custody. Emotional parentage claims through acting in the role of parent and having a bond with the child also hold weight.

Did the children arrive before or after the marriage? Children who were born to either parent within the marriage can be considered products of the marriage, even if the child was conceived with the aid of a third-party donor. Parents who gave birth or adopted children prior to the marriage may have a stronger claim, but again, it is not a guarantee. With same-sex cases, the issue is complicated with the fact that many parents were legally unable to marry at the time the children were born or adopted, and argue that they would have been married at that time if the law had allowed it.

Legal Adoptions are a crucial factor. If your partner brought their own children into the marriage, whether from a previous heterosexual relationship, adoption, artificial insemination, or surrogacy, did you then officially adopt your partner’s children? If not, you may face difficulties in obtaining custody, but it is by no means hopeless.

In custody cases, the state of Illinois cares, primarily, about the welfare of the children. They will determine custody based on what is in the best interest of the children. If you are considering divorce in Chicago you will need an experienced Chicago divorce lawyer on your side to prove your custody claim will be the best outcome for your children. Contact us today for a consultation on your case.

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