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