Who Gets Custody in a Same-Sex Divorce?
Child custody can be complicated in a divorce, especially a same-sex divorce. Texas law is still relatively heteronormative. Several factors are involved in examining who gets custody in a same-sex divorce, but the primary factor is always the child’s best interest. With a knowledgeable family law attorney, same-sex parents should be able to co-parent their children after the marriage’s end.
Establishing Parental Rights for Same-Sex Parents
Understanding each parent’s legal status is one of the first steps in determining who gets custody in a same-sex divorce.
Adoption is one of the best ways for same-sex couples to establish parental rights in Texas, aside from being the biological parent. Same-sex spouses can legally adopt children together.
Plus, if one same-sex parent gives birth to a child during the marriage, the other can file a second-parent adoption. Second-parent adoptions are permitted in Texas if the second parent is the legal spouse or partner of the biological or first adoptive parent.
The adoptive parents gain all of the legal rights and responsibilities of the parent-child relationship. Thus, if you adopt a child as a married couple or individually, you have parental rights even if the marriage dissolves.
Under Texas law, a donor used along with assisted reproduction methods (i.e., artificial insemination) does not have parental rights. The birth parent is the child’s legal parent, but what about the birth parent’s spouse? Under the law, a child born during a heterosexual marriage is presumed to be the husband’s child. Many believe this extends to same-sex parents despite the law’s heteronormative language. However, it may be best to obtain a second-parent adoption to ensure that your parental rights are valid. Plus, if the donor is a friend, they’ll have to waive their rights to the child.
Same-sex couples also enter into surrogacy arrangements. The surrogate mother, the married couple, and the donor must all enter into a valid gestational agreement to waive the biological parent’s rights and confer parental rights on the married couple. The law requires many elements for a valid gestational agreement, including permission from the surrogate’s spouse if she’s married. Speak with an experienced family lawyer about the validity of a gestational agreement.
Conservatorship: Texas Custody Arrangements
Same-sex parents deal with child custody alongside other issues in their divorce. In Texas, child custody is called “conservatorship.” The law splits conservatorship into two issues: the right to make significant decisions about the child’s life and the right to possess the child. Central to any conservatorship decision is the best interests of the child.
Joint Managing Conservatorship
Courts presume that it’s in the child’s best interests for both parents to have roles in making significant decisions about the child’s life unless one of the parents has a history of abuse, violence, or substance dependency. This is called Joint Managing Conservatorship. Thus, both parents must communicate about issues affecting the child’s education, religion, health, and medical needs.
A court or the parents must decide how to allocate parenting time in a same-sex divorce. Courts presume that a standard possession order is in the child’s best interest. A standard possession order designates one parent’s address as the child’s primary residence. The parent who is not the child’s primary residential parent has the child on the first, third, and fifth weekends and every Thursday night. Parents alternate vacations, holidays, and birthdays.
The standard possession order is not a 50/50 custody order. If you can show that it’s in the child’s best interests, you can modify the standard possession order. Ex-spouses on good terms may negotiate a possession order that works best for all parties. Courts generally approve of negotiated possession agreements.
If custody is contentious, you should gather as much evidence as possible to support your desired custody arrangement. Evidence may include documentation of your participation in the child’s daily life and the other parent’s inability to do the same. Speak with a same-sex divorce attorney regarding the evidence you’ll need for a custody proceeding.
Our Texas Family Law Attorneys Can Help with Your Custody Dispute
The law on same-sex parental rights is new and may be difficult to understand. You need an attorney who knows Texas family law and will fight for your right to maintain a relationship with your child. The knowledgeable family law attorneys at The Larson Law Office are here to help. Contact us today.
Can You Appeal a Custody Decision in Texas?
When a family court case goes to trial, one of the people involved may be disappointed with the decision. In a custody case, a bad outcome could mean you can’t see your child as often as you’d like. You think the court’s decision is not in your child’s best interest and want to challenge their decision. You may wonder, Can you appeal a custody decision in Texas?
Technically, you can appeal a final custody decision. However, an appeals court rarely overturns a family court decision. You must show that the family court made a significant legal error in their decision. Plus, you must follow a time-sensitive process for appealing a custody decision. You should speak with an experienced family appeals lawyer for guidance immediately.
What Is an Appeal in a Child Custody Case?
In an appeal, you ask a higher court to review a lower court’s final decision because you believe the lower court made a legal error. Here, you’d ask the Texas Appeals Court to review the District Court’s decision.
What Is a Final Decision?
You need a final order signed by the judge. You can’t file an appeal if the judge hasn’t decided the case. Nor can you appeal a child custody decision that is temporary.
Perhaps, you and the other parent settled your case. You may wonder, Can you appeal a custody decision in Texas if the parties agreed on it? Generally, you can’t appeal a custody settlement.
What Is a Legal Error?
Being unhappy with a case’s outcome is not the basis for an appeal. You must have a legal reason why the decision was incorrect. To file an appeal in a Texas Appellate Court, you’ll have to show that the judge abused their discretion or that there was insufficient evidence to support the decision. These standards are not easy to prove.
Proving an abuse of discretion requires showing that a judge made a significant error that impacted their decision. An example of an abuse of discretion is if the judge did not allow a critical witness to testify. Another example is if a judge’s decision clearly contradicts the law.
The bar is also high for showing that there wasn’t sufficient evidence to support a custody decision. If, for example, the judge relied on a witness you didn’t think was credible, that alone doesn’t mean the decision was improper. If the judge relied on evidence that wasn’t on the record, an appeals court might consider this insufficient evidence.
No New Issues or New Evidence
Your lawyer must have objected to the judge’s bad decisions during the trial to be able to appeal those decisions. Plus, you can’t use any new evidence for your appeal. You can only use evidence introduced at trial.
How to File a Child Custody Appeal
The process for appealing a child custody case can be time-, labor-, and cost-intensive.
First, you must file a notice of appeal with the trial clerk within 30 days of the decision. You must also file a docketing statement with the appellate court. You can ask the court to waive appeal fees if you qualify. The trial court clerk and reporter then prepare and send the case record to the appellate court. There are fees associated with this too.
Within 30 days of the appellate court receiving the record, you must file the appellant brief and other documents. The appellant brief argues why the family court decision was incorrect. The other side will then have 30 days to file an opposition brief. Then, you have an additional 20 days to reply.
You may ask for an oral argument in front of the appellate court. However, the court can sometimes decide your case without an oral argument.
The appellate court will then issue a decision. It can decide to uphold the trial court’s decision, reverse it, or send it back for a new trial or other proceedings. Most often, an appellate court upholds a judge’s decision on a custody case. However, this depends on the individual circumstances of the case, and we can discuss with you the odds of winning your case on appeal.
Contact the Larson Law Office with Appeals Questions
Appealing a child custody decision in Texas is very complicated and time-sensitive. Plus, it is very difficult to get an appellate court to overturn a custody order, especially without the help of an experienced attorney. The Larson Law Office can help you understand the family court appeals process and also explore your other options if you are unhappy with a custody decision. Contact us today.
How Long Does a Child Custody Case Take in Texas?
Disputes within a family are complicated. Living with the unknown can be extremely overwhelming, particularly when it comes to your children.
You want to file for custody of your children, but perhaps you are afraid of the process.
The last thing you want is a long, drawn-out child custody battle that will keep you and your children in limbo. So you may be wondering, How long does a child custody case take in Texas?
Below we outline the factors involved in determining how long your custody case might take to resolve.
Child custody cases in Texas can be challenging. But with the help of an experienced custody lawyer, the process doesn’t necessarily have to be lengthy.
Contact The Larson Law Office PLLC to find out how we can help expedite the process for you.
What Is a Child Custody Case in Texas?
Under Texas law, child custody is called “conservatorship.” A court decides conservatorship cases.
A managing conservator is a person who has the right to make significant decisions about the child’s life. This includes decisions regarding education, religion, and issues involving the child’s physical and mental health.
Texas courts generally default to appointing both parents as Joint Managing Conservators unless there is a history of abuse, violence, or substance abuse. This means that both parents make important decisions regarding the child’s life.
The other aspect of a Texas conservatorship case is possession. Possession refers to the amount of physical time the child spends with each parent. Texas courts generally presume that the Texas standard possession order is appropriate.
This order sets one parent’s home as the child’s primary residence, and the other parent has possession the first, third, and fifth weekends monthly, and on Thursdays.
Parents can ask for their schedule to deviate from the standard possession order, but they must show that their proposed plan is in the child’s best interest.
Child Custody Case Process
So how long do custody cases last in Texas? To answer this question, you must understand the process and the potential hiccups that delay a case. The case begins with one parent filing a petition for conservatorship called a Suit Affecting the Parent-Child Relationship.
That parent must have the other parent served with the petition, or the other parent can waive service. The recipient parent has 20 days to file an answer with the court. They may also file a counter-petition for conservatorship. The court will schedule hearing dates.
An uncontested case is one where the parents quickly agree to a custody plan. However, the case is considered “contested” if the parents disagree with each other’s proposed parenting plans.
The court will typically first refer a contested child custody case to mediation, where the parties can settle the case at any time.
Through mediation, the parties and their lawyers negotiate and try to reach a mutually acceptable resolution with the help of an impartial mediator. If the parents are fighting over small matters, a family attorney can explain how judges typically resolve those issues.
If the parties know how a judge will likely decide an issue, it might inspire them to be reasonable. Coming to a voluntary compromise will end the case much sooner—and with less stress and expense—than dragging everyone through a trial.
But if the parties cannot or will not agree, the judge will hold a trial and issue a final order that the parties must follow.
How Long Does a Child Custody Case Take in Texas?
The length of time a custody case takes depends entirely on whether the parents can reach an agreement, and how quickly that occurs.
An uncontested custody case could take only a couple of months or less. However, the process can take over a year if it’s contested. Many fall between these two extremes, and most parents eventually settle with the help of a mediator.
Sometimes there are good reasons to go to a trial on a custody matter. For instance, if you are afraid the other parent is risking harm to your child, then it would be in your child’s best interest to fight it out at trial.
But in other instances where the child isn’t being harmed, in most cases parents usually realize that refusing to budge on minor issues is not worth dragging out the process and incurring the expense of attorney’s fees.
Speak with a Knowledgeable Attorney
Not knowing how long a custody case in Texas may take can be scary. However, a family lawyer familiar with the process will be able to give you a clearer understanding of how long your case may take.
The Larson Law Office PLLC is exceptionally well-versed in Texas family law matters. We can help answer questions about how long a custody matter can take and represent you whether the case settles or goes to trial. Contact us today.
Can I Sue My Husband’s Mistress in Texas?
More often than not, adultery fatally harms a marriage. After you have put your heart and soul into your marriage, it can be devastating to discover that your spouse has been unfaithful. You want someone to pay for the turmoil and heartache that has resulted from your spouse’s infidelity. So, you might like to know, Can I sue my husband’s mistress in Texas?
The short answer to can you sue your husband’s mistress in Texas is no. However, Texas law offers remedies during divorce proceedings if a spouse has been the victim of adultery.
Suing a Mistress
Wives who’ve discovered that their husband is cheating often wonder, Can you sue a mistress in Texas? Under Texas law, a wife’s lawsuit against a mistress for adultery generally does not work. Adultery is a voluntary sexual act between a married person and a person who is not their spouse.
Alienation of Affection
Can you sue your husband’s mistress in Texas for stealing his affection? Generally, no. Texas law states that someone cannot bring an alienation of affection lawsuit against a third party. Alienation of affection means that your spouse turned their love and affection towards someone other than you. In Texas, you cannot bring a lawsuit against your husband’s mistress for taking his affection away from you.
If you have heard about emotional distress lawsuits, you might be wondering, Can I sue my husband’s mistress in Texas for emotional distress?
To answer this question, we start with the fact that there are two types of emotional distress claims: intentional infliction of emotional distress and negligent infliction of emotional distress. For example, to prove intentional infliction of emotional distress, you must prove that the mistress’ behavior is “extreme and outrageous.” Texas courts generally do not agree that an affair fits this legal standard.
For negligent infliction of emotional distress, you must show that your husband’s mistress owes you a duty of care, that she breached that duty, and that her breach led to your damages. Texas courts have not found any basis for this claim in this context.
Ultimately, a court would believe that the root of your emotional distress claim is the forbidden “alienation of affection” claim. Since that is not permitted, a court would dismiss your emotional distress case.
Adultery and Divorce
It is natural that angry and betrayed women often wonder, Can a wife sue a mistress in Texas? Although the answer is generally no, you have legal options and remedies against your spouse if you want a divorce.
Divorce Fault: Adultery
Even though you may want to punish your spouse’s mistress, the affair is also your spouse’s fault. In Texas, whether a spouse is at fault for the dissolution of your marriage plays a role in your divorce. You can file for divorce based on your spouse’s adultery.
Proving Adultery in Court
A fault-based divorce is more complex than a no-fault divorce, where both spouses agree that neither party caused the marriage’s demise. In a divorce based on a fault, you must prove that your spouse is at fault. Thus, you must prove your spouse’s affair.
Unless they admit to the affair on the record, this means you will have to gather evidence of the affair. Some people hire private investigators to help with this process. An experienced Texas divorce attorney has access to trusted investigators, and they can help you compile the evidence you need.
Non-Cheating Spouse Receives Larger Portion of Marital Property
Alleging and proving your spouse’s adultery in your divorce proceeding may feel like a hassle. However, unlike most of the country—Texas courts look unfavorably upon a spouse who causes the end of a marriage. As a result, a judge may award you, the innocent spouse, a more significant portion of the marital estate if you can prove your spouse’s adultery.
Texas is generally a community property state. This means that most property accumulated by either spouse during the marriage is considered owned equally by both spouses. For the most part, when spouses divorce, a court distributes marital property relatively equally.
However, in cases where one spouse is at fault for the divorce, particularly because of adultery, a court may find that a “just and right” division of the property requires less distribution to the at-fault spouse. For example, suppose you show that your spouse spent community property to perpetuate the affair. In that case, a judge will likely award you a more significant portion of the marital property than your spouse.
Contact Our Divorce Attorneys
If you believe your spouse is having an affair and want to discuss your options, The Larson Law Office is here for you. We provide compassionate and individualized service to each client because we understand that a divorce is difficult and emotional. Contact us today for a consultation.
H Texas Magazine Selects Larsons for 2020 Houston Top Family Lawyers List
Congratulations to Firm partners Diana Larson and Erik Larson for each having again been named to H Texas Magazine’s annual list of Houston Top Family Lawyers for 2020.
In its July 2020 issue, H Texas Magazine states that it compiles the list of Top Lawyers in Houston based on “nominations from clients and peers as well as rigorous background checks.”
To contact Diana or Erik about retaining them to represent you in your divorce or child custody case, contact them at (713) 221-9088.
Erik Larson and Diana Larson Receive 2020 AV Preeminent Rating from Martindale-Hubbell
The Firm congratulates Erik Larson and Diana Larson on each receiving a 2020 AV® Preeminent™ rating from Martindale-Hubbell Peer Review Ratings.
An AV® Preeminent™ Rating “is a testament to the fact a lawyer’s peers rank him or her at the highest level of professional excellence.” This distinct achievement of professional excellence is earned through a strenuous Peer Review Rating process, which places Erik Larson and Diana Larson among the elite of fellow legal professionals.
Martindale-Hubbell has been conducting peer-review ratings for over 100 years to identify and recognize lawyers with the highest legal ability and ethical standards. Lawyers are rated by their peers — attorneys and judges — in the categories of legal knowledge, analytical capabilities, judgment, communication ability and legal experience as well as a high level of ethical standards.
For experienced and high quality legal representation in divorce and family law cases, contact The Larson Law Office today.