In Illinois, child custody issues in same-sex divorces can be particularly complex when just one spouse is the child’s biological parent.
Unless the non-biological parent has taken formal legal steps to establish parentage, they are not automatically granted parental rights under Illinois law.
How To Establish Same-Sex Parentage and Child Custody in Illinois
Child custody is technically an outdated term, which most people intend to mean parenting time.
The first step to parenting time is establishing parentage.
Why Legal Parentage Matters
In Illinois, only a legal parent can be awarded:
- Parental responsibilities (decision-making),
- Parenting time (custody or visitation).
If you’re a non-biological parent in a same-sex relationship and your name is not on the birth certificate, or you never legally adopted the child, you may have no custody rights unless legal parentage is established.
Common Parentage Issues in Same-Sex Divorce
Common situations where parental rights may be at risk:
- The child was born to only one spouse.
- The child was conceived using assisted reproduction or surrogacy, and no adoption was completed.
- The child was born before the couple married, and no legal parentage action was taken.
- The non-biological parent assumed a parenting role but did not establish parentage in court.
How to Establish Legal Parentage in Illinois
If you didn’t complete legal steps before your divorce, it may not be too late. Illinois law provides several ways for non-biological parents to gain legal recognition.
Option 1: Voluntary Acknowledgment of Parentage (VAP)
A VAP form can be signed when a child is born.
- Often used by married couples to confirm parentage without court.
- For same-sex couples, this may work if both spouses were present and agreed at the time of birth.
Note: Some agencies may challenge the VAP’s validity for non-biological same-sex parents so consult with a divorce lawyer if this occurs.
Option 2: Second-Parent or Stepparent Adoption
The most secure option.
- The non-biological spouse becomes the child’s legal parent through adoption.
- This allows the parent-child relationship to be recognized in all states.
If your child was born during your marriage, you can still pursue adoption to avoid legal challenges later.
Option 3: Court Order Establishing Parentage
A non-biological parent can petition the court under the Illinois Parentage Act of 2015.
- Courts may consider:
- Whether both partners intended to be parents,
- Participation in the child’s upbringing,
- Consent to assisted reproduction or surrogacy,
- The child’s bond with both parents.
Illinois courts are becoming more receptive to these cases — especially when the intent to parent is clearly documented — but results can vary.
Will an Illinois Court Grant Parental Rights?
The court’s decision depends on several factors:
Question 1:
Was the child born during a legal marriage?
Answer:
Presumption of parentage applies.
Question 2:
Is the non-biological parent on the birth certificate?
Answer:
Helpful but not always enough.
Question 3:
Did both spouses agree to the pregnancy or adoption?
Answer:
Strong proof of intent to parent.
Question 4:
Has the parent acted in a parenting role?
Answer:
Relevant, especially in contested cases.
Question 5:
Was legal parentage established through VAP, adoption, or court?
Answer:
Required for enforceable parental rights.
Protecting Your Parental Rights
Issues involving same-sex parentage and child custody in Illinois require an experienced divorce lawyer.
If you’re a same-sex parent facing divorce in Illinois and your legal status as a parent is unclear, the divorce lawyers at Koth Gregory & Nieminski are here to support you with:
- Establishing parentage
- Filing for parenting time or decision-making responsibilities
- Protecting your parental rights through the court system
- Resolving any other divorce or family law disputes
Schedule a Divorce Consultation Today
You can schedule an appointment today with one of our divorce lawyers in Bloomington, IL. Our attorneys can meet with you in-person at our office, by zoom, or over the phone. Pick a day and time that work for you through our online appointment calendar.
Published (revised): August 7, 2025
Disclaimer:
This article (Same-Sex Parentage and Child Custody in Illinois) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced divorce attorney is the best way to ensure you are receiving the most current information about Same-Sex Parentage and Child Custody in Illinois?