In 2015, the Supreme Court struck down same-sex marriage bans in all fifty states. This allowed same-sex partners to marry, and gave them the same access to marital rights and protections as heterosexual couples.
However, while this action simplified a lot of things, same-sex couples still face some unique challenges when it comes to divorce—particularly in regards to children.
Here’s a closer look at same-sex custody disputes in Texas, and how the experienced attorneys at Neal Ashmore can help you with yours.
Same Sex Custody: A Discussion of Parental Rights.
Once married, same-sex partners enjoy the exact same rights and protections as heterosexual couples—in the eyes of the law, there is no difference. Why, then, are same-sex couples treated differently when it comes to child custody?
The short answer is: they aren’t. Not really. It’s just that—by virtue of being a same sex partnership—the same assumptions about parenthood can’t be made.
This is because parental rights are different from marital ones (after all, you don’t have to be married in order to become a parent), and hence, there are some unique challenges involved.
In order to discuss them, though, you first need to understand parental rights, and how these powers are handled in custody disputes, overall.
Parental Rights
Texas courts hold the parent/child relationship above almost all else, and they give that relationship a lot of deference.
When you become a parent (whether married or unmarried), you are automatically bestowed with an invisible mantle of rights and responsibilities. This authority encompasses a wide range of powers, such as the right to make decisions on behalf of your child, and to decide how they will be raised. It also includes being able to have physical, in person face time with your child, and holds you legally responsible for meeting their physical, social, and emotional needs.
While married, legal and physical custody is shared interchangeably between parents. Neither needs the other’s permission to act on behalf of their child, and both have equal authority to make decisions. Upon divorce, however, custody must be divided, and to this end, a judge can assign powers as either joint or sole.
Needless to say, this is a fight that can get heated.
Determining custody in a heterosexual relationship can be dicey enough (especially if there are allegations of fault at stake). For same-sex couples, however, custody battles hold some unique challenges.
The Presumption of Parenthood
One of the main reasons same-sex couples face challenges (in regards to custody), is because they aren’t neatly covered under the presumption of parenthood.
In Texas, courts presume that a child born into marriage belongs to the parties in that marriage. This allows spouses to easily slip into their roles as parents, and to execute their legal and social responsibilities with ease.
The problem for same-sex couples, of course, is that only one parent can be biologically related to their child. Hence, only one partner is automatically and legally recognized as the child’s parent, upon birth. This means that if the couple divorces, a non-biological spouse could face custody complications.
Navigating Same Sex Custody in Texas
The easiest way to solve the presumption problem, is for same sex couples to initiate adoption as soon as possible after their child’s birth. Here’s why.
Adoption
Unlike a guardianship, adoption is the transfer of full parental rights and responsibilities to an adult who is not a child’s biological parent. Once complete, adoption is permanent.
If you and your partner are considering adoption—either domestic, or internationally—make sure both of you are listed as parents on all paperwork right from the beginning. Don’t wait until after your child is home to sort these things out. Life often brings unexpected changes at the flip of a hat, and you don’t want to be caught unprepared, if something happens.
For the same reasons, it’s equally as important to initiate an adoption as soon as possible, in situations where one parent is biological (and the other isn’t). This ensures that there is no lapse in legal authority, and that both partners can carry out the responsibilities of parenthood, right from the start.
Adoption Limitations
Before an adoption can proceed, however, the biological parents must first terminate their parental rights. If you have an arrangement with a close friend or relative, keep in mind that according to the Texas Family Code, mothers are not allowed to relinquish their rights until forty-eight hours after the child is born.
(Fathers, on the other hand, are permitted to terminate parental authority any time prior to birth.)
As you consider adoption, make sure to thoroughly research the laws where you’re adopting, as some international agencies still deny same sex couples the opportunity to adopt.
Biological Limitations
If you are looking for biological ways to expand your family, you’ll likely be considering either sperm donors or surrogacy.
In either of these situations, try to avoid casually accepting donations or services from people you know—especially without a contract. While Texas law does not prohibit these transactions, an oral agreement probably won’t hold up in court, should your surrogate or donor decide to change their mind about wanting a part in your child’s life.
To avoid these headaches, use only approved medical facilities where donors and surrogates are required to relinquish parental rights, prior to pregnancy.
When You Haven’t Adopted
Adoption protects same sex couples from the threat of losing their child, upon divorce. If you don’t have these safeguards, however, it may be difficult for you to be recognized as a parent by the state of Texas.
That being said, it’s not impossible.
Here, a skilled lawyer would need to show the court that it is in the child’s best interest to recognize a non-biological spouse as a parent. In consideration of this argument, the court would examine things like:
- How long the partnership had been going on;
- Whether or not the child lived with them, during that partnership;
- Any proof that both adults intended to parent together; as well as,
- Any other co-parenting agreements (or legal document) that lists both adults as the child’s parents.
If the evidence is compelling, the non-biological adult may be considered a “de-facto parent” by the court, and awarded custody.
Same Sex Custody Lawyers in Texas
No matter how you expanded your family, there’s no question that same sex couples will face their own unique challenges in a custody dispute. At Neal Ashmore, we understand these complications and are experienced at navigating their convoluted waters. If you have more questions about same sex custody in Texas, call us at (972) 436-8000, or schedule a consultation online, and let us help ensure your child’s best interests are being met.
