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  1. #1
    Join Date
    Nov 2017
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    4

    Exclamation Can You Have a Visitation Agreement for a Child Born Before a Same-Sex Marriage

    My question involves a child custody case from the State of: Illinois

    My soon to be ex wife N (same-sex marriage) moved to AZ to begin a new life with her ex L (the one before me). We have an 8 year old daughter together, she was born before we were married (but were together), and we never did a second parent adoption. Currently selling the house, once that is complete I will file for divorce in IL. It can be uncontested since there is nothing for us to argue about - no joint debt, property, neither of us want the other's menial 401K, etc. However, she wants a legal visitation agreement as a part of the marital settlement agreement. It has been explained to me in a legal consultation that she has no legal right to my daughter, therefore a legal visitation agreement would not be possible. I have told her that she can come back up here and see my daughter any time she wants to, and they talk on the phone almost every day. N said that agreement wont work for her, and she wants my daughter to be required by law to go down to AZ to visit her.

    A few questions... I cannot obviously send an 8 year old on a plane alone (nor would I ever do that), so why should I have to spend my own $ for a plane ticket for myself to go down there with her when it was N's decision to move away? Is that something that a judge could require? Secondly, N and her family have told me over the 14 years we were together how much of a 'psychopath' L is... got N falsely arrested for domestic violence, had a violent drinking problem, spent all N's money, is manipulative, and strange things occurred with N's 4 year old son while they were living together... He had 3 seizures and had to be airlifted to the hospital each time. No seizures before then, and none after (he is now 19). N now says that L has changed and is no longer the person she was back then. Now I realize that this is all hearsay, however I am EXTREMELY hesitant to allow my daughter in that house down there. I have ZERO problem if N comes up here and wants to spend time with my daughter. What would a judge say in this situation for visitation rights? Are there any mandatory out of state visitation rights?

  2. #2
    Join Date
    Oct 2006
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    16,474

    Default Re: Is It Possible to Get a Visitation Agreement

    Ok...

    The child was not born during your marriage and you did not do a second parent adoption therefore in my opinion your soon to be ex wife has no legal rights to your child and therefore no rights to make any demands. You do not have a joint child whose custody would have to be addressed as part of the divorce.

    However, that does not preclude her attempting to gain legal visitation as a third party and does not preclude you from agreeing to give her legal visitation as a third party, which she is likely hoping that you will do without realizing that the law does not require you to do so. I am not anti third parties spending time with child who are bonded to them, but I am anti them having legal rights to that visitation. It causes nothing but problems in the long haul of raising children.

    You have already had an attorney tell you that she has no rights to your daughter, therefore, you need to simply stick to your guns that you will not agree to any visitation order. Let your stbx know that you do not want to stop a relationship between her and the child, but that you will not agree to a legal visitation order, period.

  3. #3
    Join Date
    Apr 2009
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    Somewhere near Canada
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    Default Re: Is It Possible to Get a Visitation Agreement

    Could you please clarify - you were raising the child together, for the child's entire life until very recently?

  4. #4
    Join Date
    Nov 2017
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    4

    Default Re: Is It Possible to Get a Visitation Agreement

    We raised her together her entire life. We did an artificial insemination from a donor... never thought N would decide to leave, therefore never did the second parent adoption (to her detriment I guess)

  5. #5
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    Apr 2009
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    Default Re: Is It Possible to Get a Visitation Agreement

    Illinois does allow for a stepparent (as well as a non-parent) to file for visitation. If your ex is successful, the logistics can be worked out; at 8 years old, the child is more than old enough to travel as an Unaccompanied Minor. You would of course be requesting that she is responsible for transportation since she created the difference.

    It would not be a slam-dunk for your ex by any means, but your focus shouldn't be on that anyway; she has raised this child with you, in a parental role, for the child's entire life. The child's best interests should be the focus.

    Please talk to your attorney again, and make sure s/he is taking ALL of the details into account because based on what you've said here your ex may have standing to sue.

  6. #6
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    Oct 2006
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    Default Re: Is It Possible to Get a Visitation Agreement

    Quote Quoting Dogmatique
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    Illinois does allow for a stepparent (as well as a non-parent) to file for visitation. If your ex is successful, the logistics can be worked out; at 8 years old, the child is more than old enough to travel as an Unaccompanied Minor. You would of course be requesting that she is responsible for transportation since she created the difference.

    It would not be a slam-dunk for your ex by any means, but your focus shouldn't be on that anyway; she has raised this child with you, in a parental role, for the child's entire life. The child's best interests should be the focus.

    Please talk to your attorney again, and make sure s/he is taking ALL of the details into account because based on what you've said here your ex may have standing to sue.
    I agree that the ex may have standing to bring forth a third party visitation case. However, standing to sue is not a guarantee of a win, nor is a legal visitation order for a third party necessarily in the best interest of the child, even if that person has stood in loco parentis. I agree that it may be in the child's best interest to preserve the bond that she has with the OP's stbx. However, doing that through a legal visitation order is problematic at best in the long haul.

    It would also not be part of her divorce. It would be a separate legal action that her ex would have to take.

  7. #7
    Join Date
    Jun 2010
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    671

    Default Re: Can You Have a Visitation Agreement for a Child Born Before a Same-Sex Marriage

    Quote Quoting glddstgpsy
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    A few questions... I cannot obviously send an 8 year old on a plane alone
    Why not? Thousands of kids - starting from the age of 5 - fly as Unaccompanied Minors daily. N could, however, be expected to cover the expense. Be aware, however, if visitation is court-ordered to be in AZ and you do not want the child to fly alone, you could be expected to cover the cost of your accompanying ticket.

  8. #8
    Join Date
    Jun 2014
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    Default Re: Can You Have a Visitation Agreement for a Child Born Before a Same-Sex Marriage

    Airlines take Unaccompanied Minors seriously. I understand the uneasiness of sending a young child on a plane unaccompanied. But, please think of your daughter. Does she love and miss her absent parent ? If the answer is "yes". That should be all you need.

    The two of you made the decision to bring this child into a more complicated than unusual lifestyle. Which is fine. Being a parent is not always easy. Sometimes you need to do things that are best for the child that you don't like doing.

    I'm sure you're hurt and angry over the breakup. But, that has nothing to do with your daughter.

  9. #9
    Join Date
    Oct 2006
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    Default Re: Can You Have a Visitation Agreement for a Child Born Before a Same-Sex Marriage

    Quote Quoting Mercy&Grace
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    Airlines take Unaccompanied Minors seriously. I understand the uneasiness of sending a young child on a plane unaccompanied. But, please think of your daughter. Does she love and miss her absent parent ? If the answer is "yes". That should be all you need.
    Judges generally have their own opinion of how young is too young to travel unaccompanied. I have seen judges go with whatever the airline allows, but I have also seen judges say that 10 years old is too young to fly alone. So its not automatic that a judge would agree that the child should fly alone.

    The two of you made the decision to bring this child into a more complicated than unusual lifestyle. Which is fine. Being a parent is not always easy. Sometimes you need to do things that are best for the child that you don't like doing.

    I'm sure you're hurt and angry over the breakup. But, that has nothing to do with your daughter.
    She did have some concern about the wife's new partner, based on the behavior of that partner in the past. So, it was not just mom's hurt feelings coming into play.

    Secondly, N and her family have told me over the 14 years we were together how much of a 'psychopath' L is... got N falsely arrested for domestic violence, had a violent drinking problem, spent all N's money, is manipulative, and strange things occurred with N's 4 year old son while they were living together... He had 3 seizures and had to be airlifted to the hospital each time. No seizures before then, and none after (he is now 19).
    I would have hesitation about that. If she agrees to court ordered visitation she cannot easily undo that if things go haywire.

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