Same-sex marriage has been legal throughout the United States since the Supreme Court decision in Obergefell v. Hodges – which also meant that nationally, same-sex adoption is permitted. Yet some states have more LGBTQ+-friendly policies on adoptions than others. Illinois, which is considered a progressive state, is one of the states that have more protections in place than others when same-sex couples seek to adopt.
The Rights of Same-Sex Parents to Adopt in Illinois
Illinois first allowed civil unions in 2011 and legalized same-sex marriages in 2013. However, even before allowing same-sex marriages, the courts in Illinois had allowed same-sex adoptions. In 1995, the Illinois Appellate Court interpreted the state’s adoption law as not specifically recognizing or banning adoptions by unmarried couples – the law states that any “reputable person of legal age and of either sex” can petition to adopt. In that same 1995 ruling, the Appellate Court also found that this language should be interpreted to include same-sex couples. Since that decision, Illinois law has instilled more protections on LGBTQ+ adoptions.
Second-Parent Adoption
Women have access to in vitro fertilization and gestational surrogacy contracts are legal and permissible under Illinois law. But what about the non-biological parent? Illinois does not officially recognize parental rights unless there is parentage or second-parent adoption (also called co-parent adoption), i.e. the non-biological parent would legally adopt the child to gain rights under Illinois law. LGBTQ+ parents looking at co-parent adoption do not need to be married in order to engage in a co-parent adoption.
There is a presumption of parentage if the child is born into a civil union or legal marriage. However for unmarried same-sex couples to ensure legal rights, second-parent adoption is necessary and essential to be able to exercise the full legal rights of a parent. This type of adoption is necessary to make medical and other significant decisions for the child or in the situation where future legal proceedings surrounding the child may exist. Second-parent adoption may also be necessary to include a child on the non-biological parent’s healthcare or other benefits, or if the family is contemplating a move out of state where the laws regarding same-sex adoption are more strict.
The Process of Same-Sex Parent Adoption under Illinois Law
LGBTQ+ individuals thinking of adopting may want to explore resources familiar with the unique considerations of same-sex adoption, such as the Family Equality Council and Human Rights Campaign. Equality Illinois is another helpful resource that has a list of Illinois adoption agencies along with their stated policies on same-sex adoptions.
Generally, the adoption procedure starts with an initial informational meeting with the adoption agency of the couple’s choice, completing paperwork, a home visit, more paperwork, possible classes, and a background check. Then a match must be made between an expectant parent and the possible adoptive family. There is also a legal component to any adoption (including co-parent adoptions), which involves an initial petition, court appearances as well as possible home visits.
It’s important to remember that any Illinois adoption agency that receives public funds is prohibited from discriminating against potential parents based on sexual orientation – so the adoption process should be the same for same-sex couples as it is for opposite-sex couples.
Allocation of Parenting Responsibilities for Same-Sex Parents
Same-sex parents that have married or completed the co-parent adoption process have the exact same rights as heterosexual couples, which means they may also share the same challenges in allocating parental responsibilities (formerly known as Custody). And if a same-sex relationship breaks down where they share a child (as long as both parents have full legal rights as discussed above) – either parent may need to turn to a lawyer or lawyers to help him or her if the couple has not had success in working out decision-making and parenting time on their own.
If you are an LGBTQ+ individual in need of assistance in adopting a child or allocating parental responsibilities after a breakup, contact Davis Friedman. Our attorneys are skilled in family law, including the unique challenges and considerations involved with same-sex adoption. We can help you navigate the legal system with compassion and thoughtfulness.
