Dealing with child custody can be difficult, especially for LGBTQ families. Protect your family’s future, and call us at Silberman Law Group at 312-593-0075.
Special Legal Considerations for LGBTQ Families in Glencoe
In Illinois, at least 4.3% of the population identifies as LGBTQ. About 28% of these people have children.
The laws surrounding LGBTQ parental rights are fairly nuanced. A lack of biological connections could be used against you in a custody battle.
Recognition of Nonbiological Parents
Nonbiological parents in LGBTQ relationships may have to jump hurdles when trying to get custody. This can be true even if a nonbiological parent is a legal parent. Biological connections might influence courts’ custody decisions due to judges’ personal biases.
A nonbiological parent who is not a legal parent can be at a steep disadvantage, especially if the other parent is a biological parent. These parents should legally establish their rights through adoption as early as possible. Not doing this may mean the parent has limited custody or visitation in case of a separation, divorce, or death. Such outcomes may hurt children’s well-being.
Interstate Moves
Same-sex adoption in the United States is relatively common. However, families often move to different states, and not all states have the same laws on LGBTQ parentage or adoption rights.
If you are moving to Illinois, consult with a family lawyer or child custody lawyer to protect your rights and help your children. If you are moving out of Illinois, talk with a lawyer in the new state. Always check that your lawyers are experienced in LGBTQ family issues.
More Than Two Parents or Caregivers
There may be multiple adults or caregivers in a child’s life – or not in the child’s life, in situations involving a biological parent who has not been in touch for years. Such parents, even when not in contact with the child, may be unwilling to give up their parental rights. This can lead to LGBTQ family legal disputes. One common example involves a biological mother, her same-sex partner, and a biological father who does not want to give up parental rights. Another common example involves same-sex couples, one of whom is not a legal parent, and biological grandparents heavily involved in the child’s life.
Situations involving multiple partners, such as in polyamory, can also result in parents worrying about their rights when the child has one or two legal parents already. Talking with a lawyer can help you clarify your rights and determine the next steps for as much protection as possible.
Gender Transitions
Child custody issues for LGBTQ families may involve transgender parents, especially if the transition occurs after the birth or adoption of the child. One parent may use the gender transition against the other parent. It sometimes plays into biases judges have. Courts should not make decisions based only on a parent’s gender identity, but such identity can indirectly affect custody or visitation.
If a parent transitions after the court makes a custody order, the other parent may claim the transition impacts the child’s welfare. Transgender parents can show that their gender transition does not have a negative effect on the child’s well-being, but many steps may be required.
Common steps involve showing stable parenting, using testimony from mental health professionals, and going to family counseling. The gender transition may also improve the parent’s mental health, resulting in a more supportive and nurturing home life. If the parent discussed the transition with the child, documenting this can show the court that the parent is considering the child’s feelings and needs.
Substance Abuse or Mental Illness
People who identify as LGBTQ are at higher risk than those who identify as heterosexual for substance abuse issues and mental illness. A history of either can hurt a parent’s chances at getting custody or visitation, especially if the parent does not have legal ties to the child. Parents do have options, though.
- Show evidence of progress: Evidence of treatment, medications, recovery programs, or therapy may be helpful. Show your consistent participation, and offer statements from doctors, counselors, and others that indicate your progress and stability. Document everything you can.
- Emphasize a stable living environment and a stable lifestyle: Stable employment, or financial stability, is a plus, as is a safe home.
- Talk about your support system: A positive, reliable support system helps many people stay on track with recovery. People in your support system may also be able to attest in court to your involvement in the child’s life.
- Be cooperative: Show that you are willing to co-parent safely.
What Are the Most Common Child Custody Issues for LGBTQ Families in Illinois?
LGBTQ families in Glencoe and the rest of Illinois often face many roadblocks when it comes to child custody. Three types are especially common, though.
1. Not Establishing Parental Rights Through Same-Sex Adoption
Children’s rights include custody decisions made based on their best interests and a right to a relationship with both parents. Usually, this automatically means only legal parents. Children also have the right to protection from harm and to get consistent and stable care.
Same-sex adoption gives legal parentage and equal custody rights to both parents. Unfortunately, many LGBTQ families overlook the importance of formal adoption. This happens for many reasons, including an assumption that marriage gives automatic rights to both parents. Another is feeling secure in the marriage or relationship and not realizing it could end in separation or death.
Without provisions for what happens to children, this opens up the possibility of a grandparent, previously absent biological parent, or someone else fighting for custody against a parent who did not adopt the child legally. The nonbiological parent may need to provide evidence of the child’s bond with him or her and, if applicable, point to the intent of the biological parent for the partner to be a parent. Guardianship designations, wills, and other legal documents can help with this.
2. A Bias in Favor of Biological Ties
Bias sometimes affects how child custody is determined. Judges, the parents themselves, and other people may have conscious or subconscious biases that favor biological ties. Technically speaking, courts are required to serve the child’s best interests, but in reality, they do not always do this.
A nonbiological parent may still get custody or visitation rights without legal recognition of parentage, especially with documentation of a parental relationship. Showing shared caregiving, financial contributions, involvement in the child’s life, and agreements with the biological parent can bolster a case for custody or visitation.
In addition, judges review factors such as the emotional relationship between the child and parent and intentions between the partners for shared parenting. Under the Illinois Parentage Act, a nonbiological parent can try to get legal parentage through adoption or a legal parentage order.
Talking with an attorney well-versed in Illinois LGBTQ family law can be helpful, no matter your issue. Unfortunately, some parents think they have no chance to get custody or visitation at all, not realizing it might be possible.
3. Child Support and Financial Responsibilities
In Glencoe, a nonlegal parent can be denied custody or visitation, but still be required to pay child support. It is true that child support obligations usually tie into legal parental status, but nonbiological, non-adoptive parents who assumed parental roles may be ordered to pay.
Courts, considering the child’s best interests, evaluate the parent’s financial support, caregiving, and role in the child’s life. They sometimes see reasons for child support, but not custody or visitation. This is often unfair, and an attorney can help.
Meanwhile, same-sex parents who are both a child’s legal parents are expected to support the child financially, just like they would be expected to if they were legal, opposite-sex parents. Knowing how to file for child support is helpful, and formal agreements are best. Informal agreements made without court recognition are unofficial and are not enforceable. Depending on the situation, child support and financial responsibilities can cover medical expenses, extracurriculars, and college tuition, among other expenses.
Child custody issues for LGBTQ families involve many nuances. Contact us today at Silberman Law Group to discuss your case.
