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Child Custody and Same-Sex Adoptions

Child Custody and Same-Sex Adoptions

By: M. Scott Gordon

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 adopted 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.

U.S. Supreme Court Decision Clarifies Child Custody Rights in Same-Sex Marriages

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.

Child Custody Rights Without 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 rights 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.

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 M. Scott Gordon & Associates today.