Illinois first legalized same-sex marriage in 2013. With the ability to marry, however, also comes the ability to divorce.
Same-sex divorce cases can be extremely complex. Perhaps the most complex issue concerns the allocation of parental responsibilities for men who are divorcing other men.
Establishing parentage for homosexual men is complicated
According to the Illinois State Bar Association website, Illinois established the Parentage Act of 2015 to address some parentage concerns. This Act, however, does not address parentage concerns regarding two fathers who are married. The law specifically applies to the spouse of a child’s birth mother to recognize both mothers are legal parents.
For two married men, the only legal father is the biological father. For two men who are divorcing and have a child, this can be devastating to the partner who is not the biological father.
Adoption is a valid way to obtain your legal rights
FamilyEquality.org states that the adoption laws in Illinois permit a non-biological same-sex parent to adopt their child in order to obtain parental rights. Ideally, the non-biological parent would complete this action as soon as the child was born. It can become quite complicated if the non-biological father seeks to adopt his child during a divorce as opposed to before.
Once both fathers have shared parental rights, it is much easier to allocate parental responsibilities.
While divorce can certainly be messy and complicated, it is important for couples to remember what is in the best interest of the child. Except for circumstances where abuse is involved, it is usually much better for the child to have both parents involved.