Illinois Custody and Visitation Law

Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. Illinois courts have held that a transgender parent did not have standing to petition for custody and visitation because the marriage to the biological parent was deemed invalid. Courts have not granted custody or visitation rights to the non-biological parent of a child.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.

Illinois law states: “The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including: (1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing abuse … whether directed against the child or directed against another person; and (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.

“In the case of a custody proceeding in which a stepparent has standing … it is presumed to be in the best interest of the minor child that the natural parent have the custody of the minor child unless the presumption is rebutted by the stepparent.

“The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.

“Unless the court finds the occurrence of ongoing abuse … the court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of their child is in the best interest of the child. There shall be no presumption in favor of or against joint custody. …

“A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral or emotional health.”

In one 1996 case, In re Marriage of R.S., the trial court modified a prior custody order that gave the mother custody of the children based on the mother’s same-sex relationship and the possibility that the children could experience social condemnation as a result. The appellate court reversed this modification, stating that the custody order could only be modified when there is clear and convincing evidence that the modification is necessary to serve the best interests of the children and that the father had failed to prove this. And although a court may consider a parent’s same-sex relationship when making a custody determination, the court’s function was limited to determining the effect of the parent’s conduct upon the children.

In a 1995 case, In re Marriage of Martins, a father sought to have a custody order, granting the mother physical custody of the children, modified. After being granted physical custody of the children, the mother disclosed to him that she was a lesbian. He argued that this change in circumstances warranted a modification of the custody order. The trial court disagreed and let the existing custody order stand. The appellate court reversed this decision and awarded residential and physical custody to the father. The court found that there were several factors, including the mother’s same-sex relationship, that provided clear and convincing evidence that the changes in circumstances warranted a modification of the custody order.

In a 1993 case, In Re Marriage of Pleasant, the appellate court reversed a decision that required a mother, who was in a same-sex relationship, to have only supervised visits with her son. The court stated that “sexual orientation is not relevant to a parent’s visitation rights. … It is also irrelevant that respondent [the mother] lives with her lesbian lover.” The court reaffirmed that the proper standard to use in determining whether to restrict a parent’s visitation is whether it poses a serious endangerment to the child.
In a 1991 case, In Re Marriage Diehl, the trial court awarded custody to the father and limited the mother’s visitation with her daughter to periods without her female roommate, or any other female with whom the mother was residing, being present. The mother appealed, arguing that this decision was improperly based on the factual finding that she was involved in a same-sex relationship. The mother denied having a past or present lesbian relationship with her female roommate. Despite the mother’s denial of being a lesbian, the appellate court affirmed that “an intimate cohabitation relationship of a parent, be it heterosexual, homosexual or lesbian in nature, is a proper factor to be considered by the trial court in making a custody determination.” Furthermore, the mother argued that the trial court applied the wrong standard when restricting her visitation rights. The appellate court agreed and affirmed that the standard for restricting or limiting a parent’s visitation was whether the visitation would pose serious endangerment to the child, not the best interests of the child. The appellate court found that that the visits with the mother, with a female roommate present, did not pose a serious endangerment to the daughter, and they lifted this restriction.

Custody and Visitation for Transgender Parents
Illinois courts have held that a transgender parent did not have standing to petition for custody and visitation because the marriage to the biological parent was deemed invalid.
In a 2003 case, In Re the Marriage of Sterling Simmons, a marriage between Jennifer and a pre-operative female-to-male, Sterling, was declared invalid because Illinois does not permit marriages between individuals of the same sex. As a result, Sterling had no legal standing to pursue custody of their child, who was conceived by artificial insemination. The court did grant Sterling visitation rights with the child. This case was appealed.

Custody and Visitation for Same-Sex Co-Parents
Courts have not granted custody or visitation rights to the non-biological parent of a child.

In a 1999 case, In re the Matter of Visitation with C.B.L., the former same-sex partner of the biological mother was denied visitation with a child born during their relationship. The Appellate Division affirmed, holding that the Illinois law did not confer standing to the petitioner. The statute included provisions for visitation for grandparents, great-grandparents, siblings and stepparents.

Citations: 750 ILL. COMP. STAT. 5/602; In re Marriage of R.S., 677 N.E.2d 1297 (Ill. App. Ct. 1996); In re Marriage of Martins, 645 N.E.2d 567 (Ill. App. Ct. 1995); In Re Marriage of Pleasant, 628 N.E.2d 633 (Ill. App. Ct. 1993); In Re Marriage Diehl, 582 N.E.2d 281 (Ill. App. Ct. 1991); In Re the Marriage of Sterling Simmons, No. 98 D 13738 (Cir. Ct., Cook County, 2003); In re the Matter of Visitation with C.B.L., 723 N.E. 2d 316 (Ill. App. Ct. 1999).

Updated: Thu, October 20, 2005 - 11:00:39