Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved. Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.
Custody and child visitation can be more complicated for same-sex couples. In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents. The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.
In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective. In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child. Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together. While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.
Although there is a presumption in Texas family law that a husband is the father of any children born during the marriage, the language of that law is gendered and applies to a man who “is married to the mother of the child and the child is born during the marriage.” The plain language of the statute will not apply to same-sex marriages. Furthermore, the presumption may be rebutted by genetic evidence that the husband is not the father or that someone else is the father. Thus, there is no guarantee under Texas law that a same-sex parent will be afforded the benefit of this presumption. Instead, that spouse may be treated legally as a step-parent. This could mean that that spouse is not required to contribute child support, or that that spouse is not awarded any rights to custody or visitation of the child.
Because of these issues, same-sex couples should strongly consider ensuring that both spouses are legal parents of the children if that is their intention. Doing so will protect both the child and the spouse not only in the case of a divorce but also in the event of the death of the legal parent.
Although it can be very difficult for a person who is not a legal parent to get custody or visitation if the legal parent does not agree, that does not mean it is impossible. In a case involving a child’s grandparents, the Texas Supreme Court held that non-parents who had been the child’s primary caretakers and providers had standing to pursue a lawsuit affecting the parent-child relationship. The court held the statute conferring standing on non-parents who had “actual care, control, and possession of the child for at least six months” did not require the non-parent to have “ultimate legal authority to control the child.” It also did not require the parents to be unfit or to have wholly ceded or relinquished their parental rights and responsibilities. Although this case involved grandparents, and the Supreme Court only addressed standing, it does show that non-parents “who have served in a parent-like role over an extended period of time” have standing to seek custody or visitation, even if the parent objects.
If you are facing a same-sex divorce, an experienced child custody attorney can help you navigate through the divorce process. Due to the complications and uncertainties regarding custody, it may be preferable to reach an agreement with your spouse on issues related to the children. Whether you want to try to reach an agreement or find yourself needing to litigate your case, the attorneys at McClure Law Group can assist you. Call us at 214.692.8200 to schedule a consultation.