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.
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.