Same-sex Custody

Same Sex Child Custody

Texas Family Law and Parental Status

Regarding parental rights and custody (conservatorship), Texas family law treats same-sex and heterosexual relationships equally.  One of the main determining factors in child custody suits is the status of the adults involved meets the legal definition of a “parent.”

According to Texas Family Code, a parent can be:

• a biological mother
• a presumptive father (a man who was married to the biological mother at the time of the child’s conception or birth)
• the legal father
• a man who has been declared the father by a court
• a man who has legally acknowledged paternal relationship with the child
• a woman or man who has legally adopted the child

Anyone who meets the above criteria is considered to be a legal parent.  Both partners in a same-sex relationship could thus be legal parents of the same child.  Please see our entry on Paternity for further information.

Adults who have legal parental status have important rights regarding Possession and Access to their child.  The core principle on which such rights are based is that parents are the sole decision makers for their children’s welfare, at the exclusion of influences outside the parent-child relationship.  Texas family law does not allow anyone to compromise this fundamental parental right unless a parent makes decisions that could jeopardize the child’s well-being.  This principle is as true for traditional couples as it is for same-sex couples.

Texas Family Law and Same-Sex Parental Status

In the case of a breakup between same-sex partners, access becomes difficult to obtain for a partner who does not qualify for the status of a legal parent.  A non-parent partner might bring a custody suit within 90 days of separation from the child on the basis of “actual care, control, and possession.  (In this case child must have been living with the non-parent for at least 6 months.)  However, if the court sees no reason to question the competence of the legal parent, a non-parent has no legal standing to obtain custody.

In a same-sex family, non-marital co-habitation agreements or Domestic Partner Agreements do not preserve relationships between adults and children.  The best way for non-parents to secure parental status with a partner’s child is to legally adopt the child, at which point the relationship between parent and child becomes legally protected if the couple breaks up.  Unless an adult becomes a legal parent of a child, the emotional bonds that an adult might feel for his or her partner’s child could be severed.