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Custody Battles in Same-Sex Divorce: What Happens When Only One Parent is Biological?

By Nottage and Ward on June 9, 2025

When a same-sex couple with children divorces, the custody battle can raise complex and emotionally charged questions, especially when only one parent is biologically related to the child. For LGBTQ parents in Illinois, these cases can be particularly challenging if legal steps weren’t taken early on to establish parentage.

Whether you’re facing a pending separation or seeking to preserve your relationship with your child, understanding your rights as a non-biological parent is critical.

At Nottage and Ward, LLP, we help LGBTQ families navigate divorce and custody issues with clarity, strategy, and deep respect for the bonds between parents and children.

Why Custody Is Complicated in Same-Sex Divorces

In traditional heterosexual divorces, both parents are usually recognized under the law as the biological or adoptive parents of the child. But that is not always the case in child custody cases involving same-sex couples, especially when:

• One parent is the child’s biological or adoptive parent
• The couple never completed a second-parent or stepparent adoption
• The parents used assisted reproductive technology but did not establish joint parentage
• The relationship ended before legal parentage was documented

Even if you’ve been a parent in every sense—feeding, bathing, nurturing, and raising the child—your legal status could be questioned during a custody battle.

How Illinois Defines Legal Parenthood

In Illinois, parentage, which is the legal recognition of a parent-child relationship, is what gives someone the right to seek custody or parenting time. Under the Illinois Parentage Act of 2015, several avenues are available for establishing parentage, including:

• Giving birth to the child
• Being listed as a parent on the child’s birth certificate (in some cases)
• Marriage to the biological parent at the time of the child’s birth or conception
• Court-ordered adoption or parentage judgment
• Voluntary Acknowledgment of Parentage (VAP)

For LGBTQ parenting rights, legal parentage is especially crucial. A non-biological parent in a same-sex relationship must take legal steps to establish parental status, even if they raised the child from birth.

Without legal parentage, you may be treated as a third party in court, with no legal standing to request custody or visitation.

When the Court Recognizes You as a Legal Parent

It depends on legal parentage and the specific facts of the case. If the court recognizes you as a legal parent through marriage, adoption, parentage judgment, or being on the birth certificate in a legally supported context, you have the same custody rights as any other parent. This includes:

• Seeking allocation of parental responsibilities (decision-making)
• Requesting parenting time (formerly known as visitation)
• Participating in mediation and parenting plans
• Enforcing or modifying custody agreements

This means both biological and non-biological parents have equal standing in the eyes of the court if parentage has been legally established.

What If You’re Not a Legal Parent?

If you never formalized your parental relationship, the situation becomes more difficult. But under Illinois parentage laws, there are limited paths for non-biological parent custody:

• De Facto Parent Doctrine: Some courts may consider your long-term caregiving role and allow limited rights, especially if denying contact would harm the child.
• Standing to Petition: In some cases, if you can show a significant bond and the biological parent agrees, you may petition for visitation under the “non-parent visitation statute.”
• Guardianship: A legal guardian arrangement may be pursued outside the custody system but is generally temporary.

Court Focus on the Best Interests of the Child

In any custody matter, Illinois courts focus on the best interests of the child, not the gender, sexuality, or biology of the parents. Important factors include:

• The child’s emotional ties to each parent
• The parents’ abilities to cooperate and make decisions
• The child’s adjustment to home, school, and community
• The mental and physical health of the parties
• Any history of abuse or endangerment

That said, the court’s hands may be tied if only one parent has legal status. Even a parent who is deeply involved in a child’s life can be sidelined if they lack formal parentage.

Legal Tools to Protect Non-Biological Parents

If you’re a non-biological parent in a same-sex couple, there are some concrete steps you can take, whether you’re still in a relationship or preparing for divorce.

Secure a Parentage Judgment or Adoption

If your name is not already on the birth certificate or your parentage is not presumed through marriage, petition for a court-ordered parentage judgment or pursue second-parent adoption. These steps provide equal legal status and protect your rights if the relationship ends.

Include Parenting Provisions in a Prenuptial or Co-Parenting Agreement

These agreements can clarify your intentions and set expectations for parenting roles, but they do not establish legal parentage on their own. Still, they may be persuasive in court when demonstrating intent and family structure.

Document Your Parenting Role

Keep records that reflect your active involvement in the child’s life, such as school communications, medical records, shared expenses, and testimony from caregivers. This helps establish your status as a de facto parent if needed.

Pursue Mediation First

Custody disputes involving same-sex couples are emotionally complex and often more amicably resolved through mediation. Courts may be reluctant to cut a child off from a loving parent—even a non-biological one—if both parties can reach an agreement privately.

Why Legal Counsel Matters

For LGBTQ parents, child custody law is still evolving. While Illinois offers strong protections, every case is unique and same-sex child custody in Illinois can be deeply nuanced.

At Nottage and Ward, LLP, we understand the legal intricacies and emotional dynamics that shape these cases. We help:

• Non-biological parents establish legal parentage
• Biological parents preserve and protect their child’s well-being
• Couples mediate custody agreements that center the child
• Families pursue legal recognition that reflects their lived reality

Our Chicago same-sex divorce attorneys have over 35 years of experience in complex and high-stakes family law. We combine elite legal strategy with deep sensitivity to each client’s personal circumstances.

Speak With an Experienced Divorce and Family Law Lawyer in Illinois

If you’re concerned about maintaining your relationship with your child after a divorce or if you’re considering separation and haven’t secured legal parentage, the time to act is now. Don’t wait for the court to define your role.

Whether you’re facing a same-sex divorce, co-parenting disagreement, or parentage dispute, experienced attorneys at Nottage and Ward, LLP, are here to advocate for your rights and your child’s future. Call (312) 332-2915 to schedule a consultation today.