Same-Sex Parentage and Divorce

Child-related issues for married and unmarried couples have always been determined by the Illinois Marriage and Dissolution of Marriage Act and the Parentage Act. These laws did not include provisions for same-sex couples, historically. In the last three years, that has changed. On June 1, 2014 a law took effect that allowed for same-sex marriage in Illinois, and Illinois became one of thirty-seven other states and the District of Columbia to legalize same-sex marriage.

On July 21, 2015, Governor Bruce Rauner signed the Parentage Act of 2015 into law which revised the Parentage Act to be gender-neutral and provide for same-sex couples and other issues facing modern families with children. The Act still provides for the care, custody, and control of children, still awards child support, and still contains provisions for removal and other major issues that can arise in parentage and custody cases.

Among the major changes to the Parentage Act, the law now removes the designation of “mother” and “father” and instead uses the term “parent.” The law redefines defines how a party can establish parentage if they are not married to the other parent. Now, there are four rebuttable presumptions of parentage whereas before 2015, there were only had two rebuttable presumptions and two conclusive presumptions.

Before, parentage could be established if a mother proved she gave birth to the child or, in the case of a father, a man is presumed to be the natural father of a child if he was married to the natural mother and the child is born or conceived during the marriage; if he is married to the mother and on the child’s birth certificate; or if he has signed an acknowledgement of paternity. The presumption of parentage for married couples can be rebutted only by clear and convincing evidence. The presumption of parentage for a father who has signed an acknowledgment of paternity is conclusive of parentage unless the acknowledgement is rescinded within 60 days after signing.

Now, the law provides for four rebuttable presumptions of parentage. A person is presumed a parent in the following four instances: 1) if the child is born while a person and the child’s mother are married or in a civil union or other similar legal relationship; 2) if the child was born during or within 300 days after the termination of said relationship; 3) if the child was born during or within 300 days after termination of an invalid marriage, civil union, or similar legal relationship but the parties had attempted to comply with the law; and 4) if the person enters into said form of relationship with the child’s mother after his or her birth and that person is listed as a parent on the child’s birth certificate. An acknowledgement of paternity can now only be challenged within a two-year period from the date it was signed on the basis of fraud, duress, or mistake.

If you are a couple looking for advise in pursuing a same-sex divorce, legal separation, an allocation of parental responsibilities and parenting time, or child support, please contact the DuPage County divorce attorneys at Kollias & Giese, P.C. for a free, confidential consultation.

To schedule a free 30-minute consultation, please call us at (630) 407-1200, or fill out and submit our online intake form.