In Illinois and other states, establishing parentage is an essential step to protecting parental rights. Most state laws and court rulings have primarily addressed heterosexual couples, and as such, most materials available to the public address paternity for traditional male-female parents.
Illinois appellate and trial courts, however, have repeatedly upheld the parental rights of same-sex couples. Understanding state law about parentage can help same-sex parents plan ahead before a dispute arises.
Establishing parentage or paternity in Illinois is essential to protecting parental rights if a dispute arises. Spouses who divorce or separate without establishing parentage may sacrifice their legal right to share custody. Establishing parentage ensures all of the same rights that biological or traditional, heterosexual parents enjoy.
Establishing parentage not only ensures custody rights during a separation, but it also protects a child’s right to inheritance, Social Security or other benefits and to family privileges.
Under state law, if a couple is legally married or in a civil union at the time of the child’s birth — or within the 300 days leading up to the child’s birth — the state assumes that both members of the relationship are parents for legal purposes. As the National Center for Lesbian Rights explains, Illinois courts have also ruled that same-sex couples who both consent to insemination and birth may be legal parents, regardless of whether one partner carries the child or whether either partner contributes genetic material.
While the courts may automatically recognize parentage in these and similar cases, it is generally a good idea for nonbiological parents to seek formal adoption. While the law may already appear to recognize a parent’s rights, another party may dispute this and compromise the parent’s legal privilege. Proceeding with a formal adoption will guarantee the adopting parent the same rights as a biological parent.
There are other ways to establish parentage, as well, such as signing a voluntary acknowledgment with the other parent, getting a court ruling or taking a biological test. While these may be appropriate for some parents, adoption tends to be a safer method for many same-sex couples.