If you are in a same-sex marriage and you adopt a child with your spouse, are you entitled to (what was formerly known as) child custody and visitation rights in the event of divorce? And will those rights stay the same if you adopt your child while living in Chicago but later move to another state? Those were a couple of the key questions at issue in a recent U.S. Supreme Court case, E.L. v. V.L. Why is this case important for adoptive same-sex parents in the Chicago area? In short, if you and your spouse were to divorce and move to a state without certain parental rights for same-sex couples, this U.S. Supreme Court decision clarifies that another state must recognize your legal adoption in Illinois.
Until the recent U.S. Supreme Court decision issued early in March, no federal precedent specifically made clear whether states had to permit an adoptive same-sex parent to petition for custody (or, as the revised Illinois Marriage and Dissolution of Marriage Act describes it, “parenting time” and “parental responsibilities”) in certain circumstances.
According to a recent report from Reuters, the U.S. Supreme Court overturned a judicial ruling in Alabama that “refused to recognize a gay woman’s parental rights over three children she adopted with her lesbian partner and raised from birth.” In other words, that court attempted to deny child custody rights to an adoptive mother as a result of her sexual orientation by contending that her adoption from another state was not legal in Alabama.
The case comes as good news for same-sex couples in Illinois and across the country. Without this decision, a same-sex adoptive parent in Illinois could potentially be denied custody rights in another state that refused to recognize the adoption as legal. In E.L. v. V.L., the Court did not even hear oral arguments. Instead, it determined, without oral arguments, that the Alabama court’s ruling was “particularly counter to Supreme Court precedents,” according to the article, and found in favor of the adoptive mother.
When a court in one state endorses parental rights through an adoption, whether that is in Illinois or elsewhere, another U.S. state must recognize that adoption.
What happens if you are in a same-sex marriage but only one of the spouses legally adopts a child? According to a relatively recent Illinois Supreme Court case, In re Parentage of Scarlett Z, parents who have not legally adopted a child may not have the right to petition for child custody. While that case did not involve same-sex parents, it did make clear that equitable adoption—an adoption accomplished through a parent behaving as if s/he is the legal parent rather than through a court order—does not make that parent eligible to petition successfully for child custody.
As such, it is important for same-sex parents in Chicago to go through legal adoption proceedings in order to ensure that they are eligible for child custody in the event of divorce.
Yes, same-sex parents possess the same legal rights as their heterosexual counterparts when it comes to child custody. Courts prioritize the best interests of the child, viewing the capabilities and intentions of the parents rather than their gender or sexual orientation. This legal recognition supports the notion that all parents can provide stable and loving environments for their children.
Custody decisions for same-sex couples involve careful consideration of a variety of factors to ensure the child’s overall well-being. Key aspects that courts evaluate include:
The child’s relationship with each parent – Courts assess the emotional bonds between the child and each parent, considering attachment and support.
Each parent’s ability to provide a stable home – This includes evaluating the physical, emotional, and financial stability that each parent can offer. A secure and nurturing living environment is crucial.
The child’s emotional and physical well-being – Courts prioritize the health and happiness of the child, looking at their social development, educational needs, and any specific emotional considerations.
Any prior agreements regarding custody – If parents have previously made any legal agreements or informal arrangements regarding custody, these will be taken into account as they reflect the intentions of the parents.
In situations where one parent is the biological parent and the other is not, custody rights hinge on the concept of legal parentage. The non-biological parent should take steps to establish their legal rights, typically through adoption or obtaining a court order. This legal recognition is essential to ensure that both parents are granted equal authority and responsibility in making decisions about the child’s upbringing.
Without established legal parentage, a non-biological parent may encounter significant challenges in securing custody or visitation rights during or after a divorce. Although courts examine the child’s emotional connection with the non-biological parent, legal adoption or recognition as a parent significantly strengthens their claim to custody. This underscores the importance of taking formal legal steps to affirm parental rights.
Adoption plays a crucial role in solidifying parental rights. Once a non-biological parent legally adopts the child, both parents gain equal rights and responsibilities in the eyes of the law. In same-sex marriages, second-parent adoption or stepparent adoption is often pursued by non-biological parents to secure their legal status and ensure that they are legally recognized as a parent, empowering them to make critical decisions regarding the child’s welfare.
In cases where a same-sex couple has utilized a surrogate or donor to conceive a child, custody rights are determined by the legal agreements established prior to conception. If both parents’ names are indicated on the birth certificate or if they have finalized an adoption, they automatically hold equal rights regarding the child. If such legal recognition has not been achieved, it may be necessary for one or both parents to pursue court proceedings to establish legal parentage, thereby ensuring their rights are protected.
No, courts are not permitted to deny custody based on a parent’s sexual orientation. Legal decisions in custody cases must be made with the child’s best interests at the forefront, and not influenced by the sexual identity of the parents. This principle reinforces the notion that all loving parents, irrespective of sexual orientation, can provide a nurturing environment for their children and deserve equal consideration under the law.
If you have questions or concerns about child custody, parenting time, or parenting responsibilities in our state, do not hesitate to get in touch with an experienced Chicago child custody lawyer. A dedicated advocate at our firm can help with your case. Contact Gordon & Perlut, LLC today at 312-360-0250.
(Updated 4/18/2025)