Child Custody and Same-Sex Marriage

For a same-sex couple with children, one of the biggest concerns in a pending divorce case is each party’s custody rights.

In Texas, the general rule is that for both parties in a same-sex couple to be viewed as legal parents of a child, you and your spouse must either:

1. Both have adopted the child or children.
2. One of you must be the biological parent of the child or children while the other spouse goes through the adoption process.

If you meet one of the above criteria, the court will treat your relationship with your child or children like the relationship of two biological parents. The primary consideration of the court when ordering custodial rights will then be the best interest of the child.

However, if one party is the legal parent, either biologically or through adoption, and the other party does not possess legal standing to establish parenthood, the divorce process becomes much trickier. In these cases, it is extremely difficult for a non-legal parent to receive court-ordered access to the child since there is no assumed existence of a parent-child relationship. A court may order the access of a non-legal parent to the child, but this usually occurs when the parties have reached an agreement.

Although the Texas Family Code has not been amended to address the parental rights of same-sex couples or to contain only gender-neutral language, it does contain a provision where a man is presumed to be the father of a child if he has lived with the child for two years and represents himself to others as the father of the child. This provision is called the “Presumption of Paternity.” If the parties in the divorce action are two men, this presumption is helpful in establishing legal standing before the court.

A woman who did not give birth to a child can be determined to be the mother of a child if the woman adopted the child or if she was a party to a validated or otherwise enforceable gestational agreement. The provisions in the Family Code regarding the determination of paternity can also be used to apply to a determination of maternity.

If you are a member of the LGBTQ+ community and are facing a divorce involving children or have questions about same-sex custody disputes, you need an attorney who will not only fiercely advocate on your and your children’s behalf, but one who can empathize with your unique situation.

Contact Kirker | Davis LLP today to schedule a free telephone consultation if you have questions about your same-sex relationship.