Same-Sex Nonbiological Parent Established Parental Rights To Children

Same-Sex Nonbiological Parent Established Parental Rights To Children

Under the Illinois Parentage Act, if a child is born to a husband and wife by artificial insemination and the husband signs a written consent, the husband is treated as if he were the natural father.

However, what about a situation not covered by that act, such as a same-sex relationship where a child is born via insemination? Could a noncustodial party still establish child visitation and other parental rights? The Illinois Appellate Court case of In re T.P.S. provides an answer.

Two Children Born Via Artificial Insemination

The two women in this case had been involved in a long-term, same-sex romantic relationship. During their relationship, the couple shared their income and family expenses, had a joint bank account, and jointly owned their home and other tangible property. With regard to children, the couple agreed that one partner would conceive two children by artificial insemination and that they would raise the children together as equal parents.

Approximately one year after the second child’s birth, the couple’s relationship ended, and the parent with custody of the children prevented the noncustodial parent from visiting or communicating with the children. The noncustodial parent filed a petition to establish parentage, custody, visitation and child support with respect to the children. The custodial parent argued that the noncustodial parent lacked standing to seek custody or parenting time because she was not a biological or adoptive parent. The trial court granted the custodial parent’s motion, and the noncustodial parent appealed.

Could Parental Rights Be Asserted?

Because the couple was not legally married, the Illinois Appellate Court noted that the central issue of the appeal concerned whether Illinois recognized a common-law action-that is, a lawsuit not based on a specific legislative statute for child custody and parenting time where an unmarried couple agreed to conceive a child by artificial insemination, and the couple subsequently began raising the child as equal co-parents.

The court held that children conceived by artificial insemination, who fell outside the purview of state statutes related to parentage, should not be denied the support of a nonbiological parent who actively assisted in the decision and process of bringing them into the world. Illinois public policy recognized the right of every child to the physical, mental, emotional, and monetary support of his or her parents and this public policy applied to children born to a couple by assisted reproduction even if a parent was not biologically related to the children.

Thus, the court concluded under Illinois family law that the best interests of children and society were served by recognizing that not only may parental responsibility be imposed, but also parental rights may be asserted, based on conduct indicating actual consent to the artificial insemination procedure by an unmarried couple along with active participation by the nonbiological partner as a co-parent.

Protecting Your Rights And Your Children

Custody disputes related to children, whether arising from a divorce or otherwise, can be among the most acrimonious and emotional issues to resolve. If your parental rights are at stake due to a custody or visitation dispute, it is crucial that you seek an experienced family law attorney who is committed to navigating complex issues to protect your rights and the best interests of your children.

Contact a lawyer at S.A.M. LAW OFFICE, LLC, today for a free initial consultation. We serve Chicago and the surrounding areas.