Under Illinois law, parents no longer get what used to be known as “custody” or “visitation.” Since 2016, divorcing parents, make an “allocation of parental responsibilities.” This also applies to same-sex marriages. Parental responsibilities include both “parenting time” and responsibility for making significant decisions. Parenting time is the time during which a parent is responsible for caring for the child. The parent is also in charge of making non-significant decisions. Responsibility for making significant decisions means a parent decides issues of long-term importance for the child. You must be a parent to have any parental responsibilities. The Illinois Parentage Act decides who a parent is under Illinois law. In a divorce, the parents agree on a parenting plan. This includes any division of parental responsibilities. Or, if the parents cannot agree, the judge will decide.

Couples including a child’s birth mother

In same-sex couple cases that involve a child’s birth mother, the law explains whether the spouse can be the legal parent of the child. This would allow the spouse to have parental responsibilities. If you qualify as the child’s “parent” under the Illinois Parentage Act, it is presumed that you are the child's legal parent.You would also get parental rights in a divorce. This means you are a part of the sharing of parental duties.

The Illinois Parentage Act

The Illinois Parentage Act explains four ways someone other than the birth mother can be a child’s legal parent. These explanations apply to both marriages and civil unions. The spouse's gender does not affect these rules.  A person is presumed to be the child's parent if:

• The child is born while the spouses are married to each other. or
• The child is born after the marriage is over, but within 300 days of the end of the marriage. The marriage can end by divorce, death, invalidity, or legal separation. This rule applies to a child conceived during the marriage but born after it ends. or
• The child is born during the marriage or civil union or within 300 days after it ends. But the marriage or civil union is declared invalid even though the couple tried to enter into a marriage or civil union under the law. This applies to couples who tried to marry but left out a required step. or
• After the child’s birth, the person and the birth mother marry or enter into a civil union. The person is also named on the child’s birth certificate. This must happen with the person’s written consent.

If the child’s birth father is named on the birth certificate, the same-sex spouse of the birth mother may want to adopt the child. This would end the birth father’s parental rights. This may also happen if the child's birth father satisfies any of the above conditions.
 

Male couples

The spouse of a birth father does not have the same legal rights as the spouse of a birth mother described above. For a male couple to establish themselves as a child’s parents, both men must adopt the child. Or, if one of the men is already the child’s established parent, only the spouse must adopt the child. This occurs by satisfying one of the conditions under the Illinois Parentage Act described above. After the divorce or end of the civil union, both spouses are then entitled to parental rights.