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Common Issues in LGBTQ Family Law

January 30, 2024
Common issues in LGBTQ family law in Northbrook, Illinois, include child custody disputes, especially if one person is not the child's biological parent. Other issues include adoption procedures, establishing parentage and recognition on birth certificates, and internal discrimination in various places in the family law system. There can also be confusion over civil union agreements that occurred before same-sex marriage legality.
Gay couple feeding their adopted baby girl at home. lgbtq family law.

What Are the Current LGBTQ Family Laws in Illinois?

Illinois recognizes marriage equality for same-sex and opposite-sex couples. The state has recognized same-sex marriage since 2014 with a bill signed in 2013, and the U.S. Supreme Court struck down all state bans on it in 2015. However, some couples who got civil unions before then may have concerns about converting their unions into marriages, or they worry about the assets they acquired during a civil union before they converted it into a marriage.

Other common laws affecting the LGBTQ community relate to adoption, foster care, surrogacy, establishing parentage, child custody, and visitation rights. LGBTQ people do not always have the same rights as others in these situations, at least not without navigating additional complexities.

Legal Recognition of LGBTQ Relationships

In Illinois and elsewhere in the United States, LGBTQ people can get married like their opposite-sex peers. They face many of the same challenges that their peers do in divorce. However, issues such as child custody can pose additional complexities, particularly if one parent is not a legally recognized parent.

Legal Rights and Benefits in Same-Sex vs. Opposite-Sex Couples

Both same-sex and opposite-sex married couples share key rights and benefits in Illinois, with a few issues in various places.

  • Marriage: Couples can get a marriage license, hold a legal ceremony, and enjoy all the legal benefits and responsibilities of marriage.
  • Legal recognition: Illinois law grants the same legal status and protections to same-sex and opposite-sex couples.
  • Divorce and dissolution: Issues such as the division of property, child custody and support, and spousal support are the same. However, complications can occur, if one parent is not legally recognized as a child’s parent.
  • Parental rights: When both people in a same-sex couple have legal parental rights, then the best interests of the child standard applies when it comes to custody and visitation rights, just like it does for opposite-sex couples.
  • Adoption: Same-sex couples and opposite-sex couples can adopt jointly or individually.
  • Family law and estate planning: Both same-sex and opposite-sex couples have the same legal rights and options with issues such as estate planning, wills, trusts, and inheritance.

As far as health care and insurance benefits, many employers and insurance providers offer benefits to the spouses of employees or policyholders. This holds regardless of their gender and whether they are in a same-sex or opposite-sex marriage.

Similarly, same-sex and opposite-sex couples can file joint state income tax returns. Same-sex couples are entitled to the same federal benefits and protections as opposite-sex married couples, including Social Security benefits and federal tax benefits.

Adoption and Foster Care in Illinois

Same-sex couples in Northbrook, Illinois, have the same rights as opposite-sex couples in regard to adoption and foster care matters. That does not mean the experiences of LGBTQ people are exactly the same, and they do often face challenges.

Common Challenges Faced by LGBTQ Individuals

Adoption can pose a few challenges, especially since both parents in a same-sex couple often cannot be a child’s biological parents. Even if a same-sex couple has been together for years and plans together for one to have a child biologically, the other person typically needs to adopt the child for complete legal protection. If this does not happen, it can cause problems with custody during divorce and international travel situations, among other issues.

Same-sex couples sometimes have children through surrogacy, and it often happens that one of the people in the couple is the biological parent. Fortunately, Illinois is a surrogacy-friendly state. Pre-birth orders from the court can streamline the issuance of a birth certificate that has the names of both intended parents.

Other common adoption and foster care challenges include some agencies, social workers, or people who work in the system holding biases against same-sex couples. This can lead to microaggressions or even outright denial of opportunities.

Similarly, a biological parent’s bias can create hurdles. Take a same-sex couple who has been together 10 years and raised one partner’s children for that time. The other biological parent has not been involved, but might refuse to give up rights due to bias, whereas the parent might consent to adoption if it were an opposite-sex relationship.

There can also be a lack of information and resources. It is not always easy for LGBTQ people to find the resources they need to fit their legal or parentage situation. For example, going through the home study can be extra uncomfortable, as LGBTQ people may face questions from the social worker they find inappropriate or invasive.

Same-sex couples can also struggle to update legal documents, such as birth certificates for their children. Trans and nonbinary people may face similar challenges, too, if making name changes.

Best Interests of the Child Standard

The best interests of the child standard applies in Illinois adoption and foster care cases. Fortunately, many LGBTQ couples do not encounter problems when going through an adoption, especially when they planned to have the child together. In these situations, the child’s best interest is typically clear and is usually to remain in the home created for the child.

However, a parent’s criminal history or a history of substance abuse can throw roadblocks in the adoption process. For example, a biological parent with serious felony convictions can typically automatically become a child’s recognized parent without having to go through adoption. The same does not necessarily apply to same-sex couples, in which one individual is not the biological parent. The parent with the legal issues may have to show evidence of rehabilitation or treatment to be able to adopt the child, and adoption may not always be possible.

Parental Rights and Responsibilities

In divorces, same-sex couples go through the same processes as opposite-sex couples in child custody, visitation, and child support matters. The best interests of the child standard governs many of the issues. However, parents may encounter problems if they never established legal parentage.

Custody and Visitation

When both parents already have legal rights to the child, LGBTQ family law issues can be the same as opposite-sex family law cases. Judges consider the best interests of the child and weigh factors, such as the child’s age, needs, and relationships with each parent.

Joint legal and physical custody is the default preference in many cases. Both parents share decision-making rights, and the child splits time living with each parent. If one parent has sole physical custody, the other typically has visitation rights.

The parents should create a parenting plan that outlines custody, visitation schedules, and other arrangements. Illinois courts cannot discriminate based on sexual orientation when making custody decisions.

Of course, custody and visitation become complicated if one parent is not recognized as a legal parent and the other parent denies access or the ability to adopt. The nonlegal parent can face challenges trying to establish that his or her involvement is in the child’s best interest.

However, it is possible to gain rights, particularly if there is a clear and documented history of acting as a parent and the child came into being during the marriage (presumption of parentage). Factors such as whether there is another legal parent can play a role in case outcomes.

Why Is It Important to Legally Establish Parental Rights in Northbrook, Illinois?

Legal parental rights help keep the family stable, offer peace of mind, and help protect the children’s best interests.

Legal recognition of parents helps build or maintain a supportive environment for children. Similarly, parents get peace of mind and can more easily devote themselves to their children. They don’t need to worry about never seeing their children again in the case of a divorce. Otherwise, these worries can subconsciously cause some parents to keep themselves a bit distant from their children, which is not good for the kids.

Legal recognition helps with benefits such as inheritance rights, Social Security benefits, and health insurance. Legal recognition also allows both parents to have the right to make decisions about their children’s upbringing and have the right to access medical information.

Parental rights ensure that both parents have the right to custody and visitation, which becomes especially important in divorces. Unfortunately, some parents never secure rights because they believe that their marriage could never fail or that their partner would never deny them access to their children. Many parents end up in legal battles for these reasons.

Legal recognition also eliminates ambiguity about whom the child’s legal parents are. This is important for situations such as international travel and school enrollment.

Family law attorney David Silberman is the founding attorney of Silberman Law Group, Family Law and Divorce Attorneys in Northbrook, Illinois. Mr. Silberman has a long track record of success providing his clients with reliable legal advice, protecting their best interests, and helping them obtain successful, sustainable outcomes.

Years of Experience: More than 15 years
Illinois Registration Status: Active
Bar Admissions: Illinois State Bar Association
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Family law attorney David Silberman is the founding attorney of Silberman Law Group, Family Law and Divorce Attorneys in Northbrook, Illinois. Mr. Silberman has a long track record of success providing his clients with reliable legal advice, protecting their best interests, and helping them obtain successful, sustainable outcomes.

Years of Experience: More than 15 years
Illinois Registration Status: Active
Bar Admissions: Illinois State Bar Association