The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News Gazette.
With gay marriage, how does child custody get decided? Do both spouses have parental rights, or only the birth mother? What about for male same-sex spouses?
It’s different for someone married to a child’s birth mother. The law specifically spells out how the birth mother’s spouse can be the legal parent of the child.
For 2 men married to each other, it appears that adoption is the route to parentage. The spouse of the biological father of a child cannot become the child’s parent in the same way the spouse of the birth mother can.
Parents no longer get custody or visitation. Since 2016, instead of dividing up “custody” and “visitation,” divorcing parents make an “allocation of parental responsibilities.” Under the revised Marriage and Dissolution of Marriage Act, only non-parents get visitation.
Somewhat obviously, you must be a parent to have any parental responsibilities that can be allocated. Who’s a parent is determined by the Illinois Parentage Act. Its revisions also went into effect in 2016.
The Parentage Act spells out 4 ways the spouse—or civil union partner—of the birth mother of a child can be legally presumed to be that child’s parent. The law below applies to both marriages and civil unions, and to a male or female spouse of the birth mother.
First, the child is born while the spouses are married to each other.
Second, the child is born after the marriage is terminated (by dissolution, death, invalidity, or legal separation)—but within 300 days after that termination. This covers a child conceived during the marriage, but born after its termination.
Third, the first 2 situations, but where the couple tried to enter into a marriage or civil union “in apparent compliance with the law,” and that marriage or union is later terminated or declared invalid for some reason. (I’m guessing this covers couples to tried to get married but left out a required step, or where the legality of gay marriage fluctuates.)
Fourth, a person marries the birth mother after the child is born, and that person consents to being added to the child’s birth certificate.
So, if you’re a spouse or ex-spouse of a birth mother who can satisfy one of these 4 conditions, you can be presumed to be the legal parent of the child. In a divorce, you get parental rights, and participate in the allocation of parental responsibilities.
Remember, though, that this path to parenthood is only open to spouses of the child’s birth mother—male or female.
It’s not clear where these 4 paths to parenthood leaves a child’s biological father. To be safe, spouses may want to terminate his rights through an adoption. And note that the Gestational Surrogacy Act separately defines parenthood resulting when a surrogate gives birth to a child created by in vitro fertilization.
Parenthood for two men married to each other would seem to result from one being the child’s biological father, and the other adopting the child, or by both spouses adopting a child together.