Articles Posted in Parentage

According to the World Health Organization, 1 in 6 people globally are affected by infertility. With increased occurrences of infertility, as well as with the Obergefell v. Hodges decision legalizing same sex marriage nationwide, there exists a demand for the use of artificial reproductive technology (ART).


One common form of ART is In-Vitro Fertilization (IVF), which often requires the creation of embryos (or the use of donated embryos). While people don’t typically foresee their divorce or a breakdown of their relationship while they are actively trying to build a family, the reality is that many couples who undergo IVF (and other forms of ART) and who create or otherwise utilize embryos ultimately do end up going their separate ways.


The disposition of embryos in Illinois has not been addressed by the legislature. If a couple does not properly enter into a contract regarding embryo disposition in the event of their divorce or separation, the fate of those embryos will be left to the courts. In August of 2022, the Second District Appellate Court made a decision in the case of Marriage of Katsap and analyzed the three different common law approaches the courts have employed in resolving disputes over frozen embryos, specifically:

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Here’s a fact pattern that occurs with some frequency in parentage court.  To make this blog post more easily readable, we’ll assume that the mother is seeking child support from the father.  Of course, that’s not always the case, but it is certainly the more common scenario.

  • An unmarried couple has a child together, then lives in separate residences.
  • At the time of separation, neither parent goes to court to set up any formal parenting time arrangement or child support obligation.
  • The child primarily resides with the mother, and sees the father on an as-agreed basis.
  • The father provides some financial support to the mother, and occasionally buys things for the child.
  • Years go by, often with little to no conflict whatsoever.
  • The mother, either on her own or through the State, files for child support.
  • As part of the child support case, the mother requests child support going all the way back to the date of the child’s birth.

Is the father obligated to pay child support all the way back from the time that the child was born? What about the contributions and support he has already paid in the past, which were not required by any court order? Do they count for anything?


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When a child is born, the biological mother’s name is listed on the child’s birth certificate.  In most situations if the mother is married, her spouse will be listed as the child’s father.  However, that is clearly not necessarily always the case. And sometimes, for a variety of reasons, a child’s birth certificate needs to be corrected.


Today, a large percentage of children born today are not born to married parents. In fact, according to the Center for Disease Control and Prevention – National Center for Health Statistics, the percentage of all births to unmarried women in 2015 was 40.3%.

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You have just received shocking news that the mother or father of your child has passed away. Suddenly, you are in the position to take a more prominent role in your child’s life by having your child live with you, possibly indefinitely. Who is stopping you from asserting this role? Are the child’s grandparents holding you back? Is a step-parent preventing you, or are you yourself hesitant to change your own lifestyle in this situation?  This post explores Illinois law on the subject.  Please note that many of the cases on the topic use terms like “custody,” “custodial parent,” and “non-custodial parent.”  The 2016 statutory amendments replaced those terms with “parental responsibilities” and “parenting time.”


To begin the legal analysis, the courts will imply constructive parenting time and parental responsibility in favor of the surviving parent, because it is legally presumed that the surviving parent’s right or interest in the care, custody, and control of the child is superior to that of any third person who may otherwise attempt to assert their rights to the child.  Marriage of Archibald.

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Divorce litigation affects children, especially if they are living in a contentious atmosphere.  In an effort to minimize the impact of the legal process on children, counties in Illinois have implemented programs and procedures to keep children out of the courtroom, and facilitate resolution of parenting issues in domestic relations cases.  A handful of these programs are summarized here.




Counties in Illinois are required to offer mediation programs for divorcing parents.  If parents are unable to reach an agreement regarding parenting time and the allocation of parental responsibilities, and so long as there are no extenuating circumstances (such as domestic violence), the court will send parents to mediation to try to resolve these issues outside the courtroom.  Judges will often remind parties in a divorce that parents know their family situations and needs best.  As parents, they should take advantage of the opportunity to reach a resolution that is in the best interests of the family, rather than delegating that decision a third party outsider.


The mediator does not represent either party and does not give legal advice.  Rather, the mediator’s job is to facilitate conversation between the parties, and hopefully aid them in resolving the matters related to their children.  The mediator will the issue a report stating whether the parties reached a full resolution, partial agreement, or were unable to reach an agreement.

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For over thirty years, child-related issues of unmarried parents had been governed by the Illinois Parentage Act of 1984.  However, on July 21, 2015, Governor Bruce Rauner signed the Parentage Act of 2015 (the “Act”) into law, which revamped the old version by updating outdated terminology and concepts.  These changes mirror the changes in families and culture over the course of the last three decades.


As a brief summary of some of these changes reflected in developments in Illinois law, on June 1, 2011, Illinois established civil unions that allowed same-sex, as well as opposite-sex couples to form unions that were recognized by the state.  Then on June 26, 2013, the U.S. Supreme Court ruled that the United States Constitution allowed for same-sex couples to marry.  The Court ruled that the Defense of Marriage Act, which denied federal benefits to same-sex couples, was unconstitutional in that it defined marriage as between one man and one woman.  See United States vs. Windsor, 133 S.Ct. 2675 (2013).


On June 1, 2014 a law took effect that allowed for same-sex marriage in Illinois, and Illinois became one of thirty-seven other states and the District of Columbia to legalize same-sex marriage.  The Illinois General Assembly had proposed same-sex marriage legislation every session from 2007 to 2013, however it was not until November 2013 that the law was passed.  Between November 2013 and the effective date, a court ruled that same-sex couples in Cook County could marry immediately and need not wait for June, which was later extended to other counties.  Parties that had previously entered into a civil union were also able to convert their civil unions in to marriages without a new ceremony or paying a separate fee within the first year. If the union was converted in that time period, the date of the marriage would be retroactive to the date of the civil union.  Now, both same-sex civil unions and marriage are legal in Illinois.

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