Dallas-Fort Worth Same Sex Child Custody Lawyers Serving Collin, Tarrant, & Rockwall Counties

Same-sex parents have the same custody rights as other couples. However, in Texas, fighting for custody rights is rarely straightforward for same-sex couples, even if they are married. With support from our same-sex parents child custody lawyers at the Shemesh Family Law, couples can feel confident that we will defend their same-sex parental rights. Our same-sex parent’s child custody lawyers have immense experience with LGBTQ+ family law matters and believe that every parent has the right to protect their custody rights as long as the child’s best interests are prioritized. We are honored to serve same-sex couples in the Dallas and Forth Worth communities by finding common ground and creating co-parenting arrangements that reduce the possibility of conflict.

The Impact Of Marriage And Divorce For Same-Sex Parents

In the state of Texas, married same-sex couples are afforded equal parenting rights. However, after the birth of a child, the nonbiological parent will need to take legal action as they will not automatically be awarded parental rights. Establishing legal parentage for same-sex couples who are married can be done by simply adopting the child or entering into a gestational agreement. The process for obtaining parental rights can be more complex when the couple is unmarried.

The divorce process, on the other hand, can complicate how custody is divided if only one spouse is the legal parent of the child. In this case, the nonbiological parent will be at a disadvantage when it comes to creating a custody schedule. Our attorneys can protect nonbiological parent rights and show that having both parents involved in the child’s life is beneficial to everyone.

How To Navigate Custody Disputes

Same-sex divorce and custody cases generally lead to emotion-filled disputes. These disputes can be challenging for same-sex couples as only one biological parent will likely be involved. This can be unfortunate for the other spouse as they likely have engaged in behavior that could be considered psychological parenthood. Psychological parenthood, also known as de facto parenting, is when a nonbiological parent assumes parental responsibilities for the child.

While this situation can make it difficult to find a peaceful resolution, our same-sex parent’s child custody lawyers are prepared to resolve your custody dispute without letting emotions influence the final outcome. Our attorneys will utilize strategies that foster communication, empathy and honesty as we work to build mutually-beneficial same-sex parenting agreements.

Same-Sex Parents and Family Law in Texas: What You Need to Know

As the landscape of family law continues to evolve, it’s crucial for same-sex couples to understand how Texas law applies to their rights and responsibilities, particularly in matters of parentage, paternity, and custody. Though Texas has made strides in recognizing the legal rights of same-sex couples, there are still nuances and challenges that must be addressed when it comes to parenting and legal recognition of parent-child relationships. This blog will explore how Texas law applies to same-sex parents, particularly around establishing paternity, legal presumptions, and the rights of same-sex couples in family law matters.

What Does Texas Law Say About Same-Sex Parents?

The U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges (2015) legalized same-sex marriage across the United States, including in Texas. As a result, same-sex couples have the same legal rights and responsibilities as opposite-sex couples in matters related to marriage, adoption, and parental rights. However, same-sex couples still face unique challenges in establishing parentage and paternity for their children, particularly if one or both parents are not biologically related to the child.

Key Points to Remember About Same-Sex Parenting in Texas:

1. Marriage and Parentage: Same-sex married couples have the same parental rights as opposite-sex married couples. If the couple is married and one spouse gives birth to a child, the non-birthing spouse is generally presumed to be the legal parent (unless proven otherwise).
2. Second-Parent Adoption: If the non-biological parent is not recognized as a legal parent, they may need to pursue a second-parent adoption to gain full parental rights over the child. This process ensures both parents are legally recognized and have rights to custody, visitation, and decision-making.
3. Parenting Rights for Unmarried Same-Sex Couples: If the couple is not married, establishing parental rights may require formal action, such as establishing paternity or pursuing adoption. A same-sex parent may need to petition the court for custody or visitation rights if the biological parent denies them access to the child.

What legal challenges do same-sex parents face when seeking child custody in Texas?

For a variety of reasons, securing custody has been an obstacle for same-sex couples as they may be tasked with overcoming certain hurdles that other couples may not be required to. One of these barriers is standing, which is the right to have your voice heard in court after taking legal action. Generally, biological parents are the only party standing in court. In many custody cases involving same-sex couples, this can be a problem as there may only be one biological parent. Fortunately, in recent years, Texas has made changes to its laws concerning this matter. Relatively new case law in Texas can grant a nonbiological parent standing if, within 90 days of the lawsuit being filed, they have cared for or had custody of the child for a minimum of six months.

In Texas, parental presumption is another challenge that same-sex couples will need to be ready to face. Parental presumption is the assumption that the husband of the married mother is the father of their child. Some courts have started expanding their definition of parental presumption to include same-sex couples. However, by law, there is no assurance that a same-sex couple will be granted this presumption, which can add another layer of difficulty to a custody case.

Gestational agreements are something that same-sex couples need to consider as well. While this type of agreement can benefit couples during marriage by granting them both parental rights and the ability to obtain custody if a divorce occurs, it can also convolute the custody process, making it essential to obtain the services of a same-sex parent child custody lawyer.

What factors do courts consider when making custody decisions for same-sex parents in Texas?

When courts make custody decisions, they focus on what is in the best interests of the child and consider the same factors regardless of the sex of either partner. To determine whether or not one parent receives full custody or both parents will share custody, the courts evaluate which individual will provide a healthier environment for the child. Additionally, they will establish which parent can better meet the needs of the child while also providing a stable home life. If the child is at least 12 years old, the court may also take their preference into consideration.

Establishing Paternity in Same-Sex Couples

In a same-sex couple, one or both parents may not be the biological parent of the child, which can complicate the process of establishing paternity. However, the process in Texas for establishing paternity is similar to that for opposite-sex couples, with some important distinctions to consider.

1. Legal Presumptions of Parentage:

Texas law has specific presumptions about who is considered the legal parent of a child, and these presumptions are important in same-sex parenting cases. The general rule is that parentage can be established in one of the following ways:

• Marriage: If the child is born to a married couple, the non-birthing spouse is typically presumed to be the legal parent. This applies equally to same-sex couples, so if a same-sex couple is legally married and one spouse gives birth, the non-birthing spouse will typically be presumed to be the legal parent.
• Acknowledgement of Paternity: If the non-biological parent is not the birth mother (in the case of a lesbian couple), the non-biological father (in the case of a gay couple) can voluntarily sign an Acknowledgment of Paternity form. This document serves as an official declaration of parentage.

2. Biological Parent (Birth Mother) in a Lesbian Couple:

In a lesbian relationship, if the birth mother is married to her partner, the non-birthing spouse may be presumed to be the legal parent of the child, similar to the rules that apply in opposite-sex marriages. However, in some cases, the non-birthing spouse may need to undergo a second-parent adoption if the presumption of parentage is challenged or not automatically recognized.

3. Second-Parent Adoption:

For many same-sex couples, the safest and most reliable method of establishing parentage is through a second-parent adoption. This is particularly necessary in situations where one parent is the biological parent, and the other (non-biological) parent has no legal recognition of their relationship to the child.

• Second-parent adoption allows the non-biological parent to legally adopt their child without the birth parent relinquishing any of their rights. This ensures that both parents are recognized by law as the child’s legal parents, with full custody, decision-making authority, and parental rights.
• Legal Process: The second-parent adoption process involves filing a petition with the court, submitting a home study, and attending hearings to ensure the adoption is in the child’s best interest. The process varies depending on whether the couple is married or unmarried.

4. Sperm Donors in Same-Sex Couples:

In cases where a sperm donor is involved, the legal status of the donor and the parental rights of the non-biological parent should be clearly addressed. Texas law offers the option for a sperm donor to waive parental rights when they are not a part of the child’s life. This can be formalized through a donor agreement.

However, if the sperm donor is intended to have a parental role, the parties involved should consider creating legal documents or agreements to formalize their parental rights and responsibilities. Depending on the circumstances, a court order may be necessary to establish legal parentage.

Legal Presumptions in Texas for Same-Sex Couples

While Texas law does allow same-sex couples to establish parentage through marriage, second-parent adoption, and other formalities, there are some nuances and legal presumptions to be aware of:

1. Presumption of Paternity:

1. In a married same-sex couple, the law will presume that the non-birthing spouse is the child’s parent unless there’s evidence to the contrary. This is similar to the presumption for opposite-sex married couples, where the husband is presumed to be the father of a child born during marriage.

2. Same-Sex Couples and Non-Married Parents:

1. For unmarried same-sex couples, legal parentage may require formal action. A second-parent adoption or a legal acknowledgment of parentage is generally needed for the non-biological parent to be recognized as the legal parent.

3. Birth Certificates:

1. Once parentage is established (either through marriage, acknowledgment of paternity, or adoption), the non-biological parent can be listed on the child’s birth certificate.

4. Rights in Custody and Visitation:

1. Once paternity is established, same-sex parents have the same rights as opposite-sex parents when it comes to custody, visitation, and child support. If a same-sex parent is not biologically related to the child, they may need to go through the formal steps of adoption or paternity acknowledgment to establish those rights.

What Steps Should Same-Sex Couples Take to Establish Parentage?

If you are in a same-sex relationship and need to establish parentage or paternity, the following steps are typically required:

1. Marriage: If you are married, the non-birthing spouse is presumed to be the legal parent. However, if there are challenges, a second-parent adoption may still be necessary.
2. Second-Parent Adoption: If you are not married or need additional legal certainty, the non-biological parent should pursue a second-parent adoption. This process ensures that both parents have the same legal rights and responsibilities toward the child.
3. Acknowledgment of Parentage: For unmarried couples or when there are no legal presumptions, the non-biological parent can sign an Acknowledgment of Parentage to affirm their parent-child relationship.
4. Legal Counsel: Because family law involving same-sex couples can be complex, it’s essential to consult with an experienced family law attorney to ensure that your parental rights are legally recognized.

How can same-sex couples establish legal parentage for their children in Texas?

In Texas, same-sex couples have a few options to establish legal parentage. The first option for same-sex couples applies when one of the partners or spouses is the biological parent of the child. In this situation, the nonbiological parent will need to go through the second-parent adoption process, also known as a confirmatory adoption. This procedure allows the nonbiological parent to legally adopt the child without impacting the parental rights of their partner. Married same-sex couples can also decide to utilize the non-relative adoption process to establish parentage. Spouses are required to co-adopt the child in this instance.

Another option for same-sex couples is to use a surrogate and enter into a gestational agreement with that person. The gestational agreement will denote that the carrier of the child wishes to relinquish their parental rights and bestow them upon the couple. To utilize this option, couples must be married.

Same-sex couples who are not married still have options and can establish parentage through the adoption process. However, one partner will first need to move through the adoption procedure on their own. After they have finalized the adoption, there will be a required six-month delay before the other parent is allowed to begin the process.

Final Thoughts

While same-sex couples in Texas have legal recognition of their parental rights under marriage laws and can establish parentage through mechanisms like second-parent adoption and acknowledgment of paternity, navigating the legal process can still be complicated. By understanding the legal presumptions and taking the proper steps to establish your rights—whether through adoption, acknowledgment of paternity, or legal action—you can ensure that you and your partner are both recognized as the legal parents of your child.

At Shemesh Family Law, we understand the unique challenges faced by same-sex couples and can guide you through the legal process to establish parentage and ensure that your rights as parents are protected.

Learn How Our Lawyers Support Same-Sex Couples

Same-sex couples deserve an equal opportunity to protect their parental rights and secure custody. Our attorneys at the Shemesh Family Law, are proud to advocate for same-sex couples and have done so for more than a decade. To contact one of our skilled same-sex parent’s child custody lawyers, call us today at 214-432-2501 or fill out our online form.