LGBT Adoption: Knowing Your Rights in Illinois
By Joe Busnengo, Attorney At Law
For those who choose to have children, the experience is life-changing. Whether you’ve dreamt about it for years or it’s a happy surprise, the moment you become a parent is one of those rare instances that so clearly marks a “before” and “after” in one’s lifetime. When a family is formed through adoption, the parents-to-be typically spend months, if not years, waiting and then working through paperwork and red tape – making the moment all that much sweeter when they finally welcome their child.
Same-sex couples looking to adopt not only have to endure the same bureaucracy but might also experience concern over additional obstacles they may face. Recent events, news stories and even court cases may rightfully raise worries of their legal rights in adoption.
While same-sex marriage is legal nationwide, thanks to an opinion of the U.S. Supreme Court, adoption laws are generally determined by each state. None of the states outright bar LGBTQ individuals from adopting, but individual states may have laws that can create challenges for LGBTQ adoptive parents.
For same-sex couples looking to adopt in Illinois, there are a few things to consider when starting the process:
Illinois law permits both single and married LGBTQ individuals to petition to adopt. It also allows a same-sex partner to petition to adopt a partner’s child – also known as second parent adoption.
What is second parent adoption?
It’s when you have a married couple and one of them is already the parent of the child while the other is not. The other spouse then adopts that child as well, so that the child becomes a child of both people. There are many situations where this arises.
For example, if you have a widow or widower who remarries, that could end up being a second parent adoption as well.
There is a big difference, under the Illinois law, when you're adopting between what's called a related adoption and a non-related adoption. If one or both of the adopting parents is related to the child already, it makes the process far quicker and easier.
LGBT prospective parents sometimes fear that they will have a more difficult time adopting than their heterosexual counterparts. However, this is not necessarily the case. An increasing number of birth parents are choosing to place their children with same-sex couples, which can speed up the process in some cases.
The adoption process can be affected by a number of variables, including the time it takes to complete the home study, whether adoption classes are required and simply finding the right fit for your family.
If your adoption involves another state and its laws, you should be aware that not all states’ laws are as LGBT-friendly as Illinois. While no state prohibits LGBT folks from adopting, some states do put roadblocks in their path. For example, certain states have passed laws explicitly permitting private or religious adoption agencies to discriminate against LGBT folks.
In Illinois, however, there are no such restrictions.
In fact, long before same-sex marriage was legalized by the Supreme Court, Illinois established a law allowing same-sex couples to adopt. The Full Faith and Credit Clause in the United States Constitution dictates that all states must recognize the judicial pronouncements of another state. Since adoption is a judicial process and parents must go through a court and get the court order, other states are required to respect that order.
There may be challenges, however, such as adopting a child born in another state without the same protections and getting both parents’ names on the birth certificate. While other states’ laws may pose challenges or obstructions, there are only limited exceptions to the Full Faith and Credit Clause.
Call 312.929.0974 and talk to an adoption attorney at Miles & Gurney, LLC to help understand the process and your rights. We would be honored to help you grow your family.
Joe Busnengo practices in the areas of probate, family law, and estate planning. While a student at Northwestern University School of Law, he gained experience with family law as an extern at Chicago Volunteer Legal Services and with probate and estate planning as a clerk at Prather Ebner LLP. Since graduating and being admitted to the bar in 2013, he has represented clients in adoption, divorce, and estate planning matters through Chicago Volunteer Legal Services and Wills for Heroes. He is currently a member of the Chicago and Illinois State Bar Associations and serves as co-chair of the CBA YLS Public Outreach—Wills for Heroes subcommittee.