2013-11-12

Same-sex non-biological parent established parental rights to children

Article provided by S.A.M. Law Office, L.L.C.

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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 non-custodial 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 non-custodial parent from visiting or

communicating with the children. The non-custodial parent filed a

petition to establish parentage, custody, visitation, and child

support with respect to the children. The custodial parent argued

that the non-custodial parent lacked standing to seek custody or

visitation because she was not a biological or adoptive parent. The

trial court granted the custodial parent’s motion, and the

non-custodial parent appealed.

Could parental rights be asserted?

Since 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

visitation where an unmarried couple agreed to conceive a child by

artificial insemination, and the couple subsequently began raising

the child as co-equal 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

non-biological 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 non-biological

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.

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Same-sex non-biological parent established parental rights to children

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