Custody and Parenting Time Struggles for LGBTQ Parents

 Posted on August 28, 2017 in Child Custody

Battles over child custody—also called parental responsibilities—are difficult enough in this day and age without the tactics that many resort to when their spouse comes out as LGBTQ. It is sadly not uncommon for an ex-spouse to use one’s sexuality or gender identity to assert a claim that a former partner may be an "unfit" parent. In the heat of an acrimonious divorce, for you to be aware of the current attitudes and know how it could affect you and your children.

What Is the Standard in Determining Parenting Time?

Illinois law dictates that the standard to be used in determining whether a parent should receive visitation—now known as a parenting time—is "the best interests of the child." More specifically, that granting parenting time is generally in a child’s best interest unless the parent’s presence would "endanger seriously the child’s physical, mental, moral or emotional health." These are all somewhat subjective, but in practice, the reality is that Illinois courts are extremely reluctant to ban all contact between a parent and child.

While some judges may personally hold homophobic or transphobic views, there is a growing body of law that states explicitly that assuming harm will result in the absence of evidence, is improper. Cases in Florida and North Dakota, for example, have held that mere proof of a parent’s homosexual relationship does not mean they are unfit for parenting time or interaction with their children. There are cases where this reasoning has also been applied to transgender parents, though the outcome has been more mixed than it has with gay and lesbian parents.

Transgender Parents’ Legal Status

There are certain special issues that can (at least, in theory) only be brought against parents who have transitioned or are in the process of transitioning. Despite the Supreme Court ruling that brought marriage equality to all 50 states in 2015, it is still possible in certain instances to hold that a transgender parent, if not a child’s biological mother or father, has no parental rights to assert. The rationale for this is that since the transgender parent is choosing to change gender, they are choosing to give up all the markers associated with that gender.

For example, the Illinois Parentage Act of 2015 provides that a "parent-child relationship is established between a woman and a child" in several ways, including by "the woman having given birth to the child." The issue in question, then, is whether if a woman transitioned legally from female to male after giving birth would still be considered a "woman" for the purposes of the law. Illinois law generally holds that if you have adoption records or a judgment of parentage, parental rights should continue following a gender transition, but if you have neither, it may pose an issue down the road.

An Attorney Can Help Safeguard Your Rights

Your sexuality or gender identity should not endanger your rights as a parent, period. If your parenting time or parental responsibilities are attack due to either, a compassionate attorney can help. The knowledgeable Wheaton child custody attorneys at Pesce Law Group, P.C. understand that sometimes, custody battles turn ugly, and you need help to make it through with the best possible outcome. Contact us today to set up a free initial consultation.

Sources:

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K607

http://www.leagle.com/decision/19961218680So2d538_11149/MARADIE%20v.%20MARADIE

https://www.ndcourts.gov/court/opinions/20030135.htm

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3638&ChapterID=59