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Same-Sex Marriage
and Divorce

by Wes Cowell; updated 6 June 2015


Same-sex divorces are just like other divorces EXCEPT . . . children born to a same-sex couple may not necessarily considered "born to the marriage."  That means no child support, no allocated parental responsibility, no parenting time for the non-birth mother -- no rights at all, in fact.  Need advice?  Call, leave your info, or scheduleschedule a consult.

Background:  Marriage formalities are the same for all couples.  The requirements, grounds, standards, burdens, etc. for divorce also are the same for all couples.  There is, however, one HUGE caveat.  When heterosexual couples adopt children, they almost always do it jointly, as mother and father.  Same-sex couples often see one spouse adopt children and then they live as a family . . . without the benefit of a joint- or cross- or co-adoption.  That spells disaster for the non-adopting parent.


Similarly, when one partner of two married women gives birth during the marriage, the happy couple gets on with life and assume that, in the event of a divorce, they'd have equal rights to custody and visitation and they'd each support the child.  They're wrong.  Unless the non-birth mother adopts the child, she has NO rights.


The problem:  In 2013 The Illinois Supreme Court decided Dehart v. DeHart, 2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85 (Ill., 2013).  DeHart was a probate case about inheritance in which the Supremes recognized for the first time the concept of "equitable adoption."  When baby James was two years old, Donald DeHart married James' mom, hired an attorney to do an adoption, received a birth certificate for James listing Donald as the father, and everyone thought the adoption was a done deal.  Thereafter, Donald treated James like his own son and told everyone that James was, in fact, Donald's own son — the adoption "was kept secret for the good of the family." Imagine James' surprise when he was 56 years old, applied for a passport and needed his true birth certificate, and learned he was not Donald's biological son.  YOWZA!!!! His Mom was suffering from dementia and died the following year.  Donald continued to hold James out as his son, though, and even wrote a will leaving a lot to James. 


Four years later, at 83, Donald married a woman 30 years his junior — young enough to be James' little sister. Donald's mind began to cloud and not long after the marriage Donald's new wife had him sign a new will stating he never had any children, never mentioned James, and left everything to her.


When Donald died, Wife2 filed the second will with the court. James contested the will alleging several theories, including "equitable adoption." James lost (Illinois had never recognized "equitable adoption," before, so the trial court didn't have that solution in its toolbox), but the appellate court agreed with him. The Illinois Supreme Court affirmed and, in doing so, announced that "in Illinois an equitable adoption theory should be recognized under the right circumstances."


"Right circumstances?"  What does THAT mean?  Supreme Court opinoins almost always limit their application to narrow circumstances.  This language, however, seemed to hint to lawyers that the equitable adoption theory could be spread around to other types of cases with "the right circumstances."  


In 2014, Illinois recognized same sex marriage.  Lots of those recently married couples wondered "Hmmm, if my partner adopts or gives birth to a child, I automatically have parental rights because we're married, Right?"  Word got around that, thanks to DeHart, Illinois recognized the common law doctrine of equitable adoption.  Those same-sex couples concluded that they did NOT have to cross-adopt children.  They thought Dehart allowed them to secure parental rights, under the newly minted theory of equitable adoption. Then along came Scarlett Z.-D.


Scarlett Z.-D.:  The Scarlett Z.-D case (In re: Parentage of Scarlett Z.-D., 2015 IL 117904 (Ill., 2015)) arose from a (heterosexual) couple who never married, the mother adopted a child, the father never adopted the child, and four years later they broke up.  When the father tried to bring "functional parent" claims (including equitable adoption), common law claims, and even constitutional claims, he struck out across the board.  This ruling is no big surprise for couples who never marry, but it sounds a loud and clear warning for same-sex couples where one parent gives birth to or adopts children and the other does not adopt:  unless the non-adopting / non-birth parent also adopts the child, that parent cannot press a case for parental rights in divorce. 


Here are the salient points to Scarlett Z.-D.:  Jim and Maria met in 1999, fell in love, and moved in together. Also in 1999, Scarlett was born in Slovakia.  Jim supported Maria and they became engaged a year or two later -- right around the time Scarlett's mother's parental rights were being terminated and Scarlett was being placed in an orphanage.  In 2003, on one of Maria's frequent trips to her native Slovakia, she adopted 3-year-old "Scarlett Z."   Jim couldn't be part of the adoption (not married and not a Slovak). Jim supported Maria, however, throughout the year-long process while she remained in Slovakia. Jim travelled to see her five times and participated in a psychological screening.  In 2004, everything was approved and Jim, Maria, and 5-year-old Scarlett all went home to Elmhurst, Illinois.


Jim was the father figure in Scarlett's life.  Scarlett called him "Daddy." Scarlett's last name was hyphenated to include Jim's, and Jim was listed in Scarlett's school records as her father.  Jim support the family and he even set up a $500,000 irrevocable trust for Scarlett. Jim brought up the subject of adopting Scarlett every few months, but he and Maria never got around to it.


Jim and Maria were very good parents and worked well, together . . . for four years. Things broke bad and Maria moved out in August, 2008, taking Scarlett with her. Ouch. Under existing Illinois law, Jim's attorney knew he had no statutory authority to work with; so she filed a six count Petition and threw everything he had into it, alleging:

  1. a Declaration of Parentage seeking joint sole or joint custody but with Scarlett to reside mostly with Jim and visit with Maria,

  2. an equitable division of child support,

  3. breach of Maria's oral contract that they would be equal parents of Scarlett,

  4. promissory estoppel,

  5. breach of Maria's implied contract, and

  6. breach of a contract implied at law.


The trial court threw out counts 3, 4, 5 and 6; and then said Jim lacked standing to bring the case (throwing out count 1).  Since Jim had no relationship to Scarlett, he didn't have to pay child support, so the court threw out count 2.  Jim lost everything.


You can ignore these next few paragraphs about the case's procedure but it's impressive.  Get your scorecard out and sharpen your pencil, because this gets complicated. Jim appealed, but the appellate court affirmed the trial court's dismissal of Jim's case. Jim appealed to the Illinois Supreme Court, but the Supremes didn't take the case. They did, however, say that the appellate court should take a second look at Jim's claims based on the equitable adoption theory announced in Dehart. The appellate court took a second look at Jim's claim because of DeHart and said that, on second thought, maybe Jim should be allowed to proceed on counts 1 and 2, but reaffirmed the dismissal of counts 3, 4, 5 and 6.  The appellate court thought the "equitable adoption" doctrine might be a basis for Jim to claim standing. They sent the case back to the trial court for some fact-finding. Maria didn't like that idea and appealed the appellate court's second ruling back to the Illinois Supreme Court. Jim cross appealed, complaining that the appellate court (the second time around) shouldn't have tossed his common law claims (nos. 3 - 6).


The Illinois Supreme Court took up Maria's and Jim's cross appeals. The case hinged on whether Jim had standing to bring his case under the doctrines of A) Equitable Estoppel, B) Functional Parent Theory, or C) Equitable Adoption


A)  Equitable Estoppel:  "Estoppel" is the principle that precludes a person from asserting a position contrary to what is implied by a previous action or statement of that person. Both the trial court and the appellate court thought Jim didn't have enough to go on but, the second time around the appellate court thought maybe, just maybe, Jim might have an argument that Maria previously promised to have Jim be Maria's adoptive father and now she was reneging.


To establish equitable estoppel, Jim needed to show that

  • Maria misrepresented or concealed material facts;

  • Maria knew at the time the representations were made that the representations were untrue;

  • Jim did not know that the representations were untrue when they were made and when he acted upon them;

  • Maria intended or reasonably expected the representations to be acted upon by Jim (or the public)

  • Jim reasonably relied on Maria's misrepresentations in good faith OR to his detriment; and

  • Jim had been prejudiced by his reliance on Maria's representations.


The Supremes said "[t]he test is whether, considering all the circumstances, conscience and the duty of honest dealing should deny one the right to repudiate the consequences of his or her representations or conduct."  In re:  Parentage of Scarlett Z.-D., 2015 IL 117904, citing Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. 114 Ill,. 2d 133 148 (1986).


Obviously, under that scrutiny, Jim lost the "equitable stoppel" claim because Maria made no misrepresentations. "A promise to do something in the future does not constitute a factual misrepresentation . . . a misrepresentation, to be actionable, 'must generally relate to an existing or past event, not to a promise or prognostication concerning a future happening."  In re: Parentage of Scarlett Z.-D., 2015 IL 117904, citing Sinclair v. Sullivan Chevrolet Co.,  31 Ill.2d 507, 510 (1964).


B)  Functional Parent: The Functional Parent theory (also known as the "psychological parent" or "de facto parent") is a common law doctrine arising from a child's relationship with a non-parent that, by any observation, is equivalent to a parent-child relationship — deep emotional bonds and daily nurture and guidance — but lacking the legal foundation.  Although state courts around the nation use these terms interchangeably, they really have different meanings.  See, the American Law Institute's Principles of Family Dissolution.  Illinois courts have NEVER allowed the functional parent theory any credence. The Illinois Supreme Court acknowledged that many states allow non-parents to bring cases under the functional parent theory.  Still, they said, this area of the law is too complicated for judges to just wade in and start mucking around.  If you want this kind of law in Illinois, they said, get the legislature to put it in writing.


C)  Equitable Adoption: "[T]he doctrine of equitable adoption allows a person who was accepted and treated as a natural or adopted child, and as to whom adoption typically was promised or contemplated but never performed, to share in the inheritance of the foster or stepparent."  In re:  Parentage of Scarlett Z.-D., 2015 IL 117904, @ para. 46.  The Supremes were foreshadowing their conclusion.  Equitable adoption is used in probate court, not in family court.


Back to Scarlett Z: Jim D. argued that the "equitable adoption" or "functional parent" theories should be applied in his case.  The Supremes disagreed, saying "We agree with Maria that the doctrine of equitable adoption, as recognized in DeHart, is a probate concept to determine inheritance and does not apply to proceedings for parentage, custody, and visitation;" and "not intended or implied to create the legal relationship of parent and child, with all the legal consequences of such a relationship, nor is it meant to create a legal adoption."    In re:  Parentage of Scarlett Z.-D., 2015 IL 117904, @ para. 52.  Scarlett's Mom, Maria, carried the day and Jim was left out in the cold.


So, for all you same-sex married couples out there, if only one parent adopts the children, the other (non-adopting) parent has no legal recourse — there is no "functional parent" approach, no common law approach, not even a constitutional approach. That you're married carries no weight because there is no legal theory by which to gain standing to get the matter in front of the court.


If two women marry and one gives birth, the birth mother would have the legal right to file a Petition to Declare the Non-Existence of a Parent-Child Relationship, and there would be no defense for the non-biological mother.



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