It has only been a matter of months since the U.S. Supreme Court legalized same-sex marriage nationwide. That means it could be some time before the nation and Illinois see many same-sex divorce cases. However, it is important for anyone in a gay or lesbian marriage to be aware of some of the potential issues that could arise if they ultimately do get divorced.
At first glance, it would seem logical that if same-sex marriages are legal and equal to heterosexual marriages, then their divorces should be handled in the same manner as well. In some cases such as property division settlements, that may well be the case. However, when it comes to child custody, that is not yet the case. Fox Business explains that challenges in a custody dispute between gay or lesbian parents can be difficult but only one partner at most can be the child's biological parent.
The Daily Caller corroborates what Fox Business notes, indicating that the law has not yet caught up with the legalization of gay marriage insofar as it does not have a way of delineating parentage for a non-biological parent. In the case of one couple in Maryland, that state’s Court of Appeals upheld a lower court’s decision to deny one woman custody of a boy after her divorce from the boy’s biological mother. The child was born a few months before the couple married and the birth certificate only noted the name of the mother, not a father.
Parents in a gay or lesbian relationship in Illinois should be aware of these and other potential complications in case they are faced with a same-sex divorce.