Because Texas law is still fairly heteronormative even after the Obergefell opinion, child conservatorship issues, already a difficult subject to broach in a divorce, can become even more complicated for same-sex couples looking to split.
Before the Court can make decisions for a child, parentage must be established. Parentage is the identification of a child’s parents. In Texas, parentage presumptions are usually based on the birth mother of the child, whose legal parentage doesn’t need to be established by a court order; the logic is that she gave birth to the child, so she must be the biological mother. If a mother is married when she gives birth, there is a presumption that the birth mother’s husband is the other legal parent of the child. This presumption that the “non-carrying” parent is the child’s second parent does not always extend to same-sex couples, though there is a growing trend to support this application of the presumption.
Establishing parentage can be more complicated for the LGBTQ+ community for several reasons. For example, queer people are less likely to be married, making it more likely that they will need legal proceedings to establish parental rights over their children rather than the mere application of a presumption. Even for married queer couples, simply being married and having both parents’ names on a child’s birth certificate is not enough to protect both parents’ legal rights to the child. Even though a non-biologically related parent can have their name on the child’s birth certificate, in Texas, a birth certificate does not establish legal parentage. This is also true for heterosexual couples that have their names listed on the child’s birth certificate.
For LGBTQIA couples, establishing legal parenthood early on is critical to ensure that parental rights are protected. This can be daunting and cost-prohibitive, as it often requires at least one parent to formally adopt the child. However, this is not a bridge to cross when you get to it—acting too late may be disastrous in the event of a heated divorce or the death of a legal parent. Although it is possible that parents may remain amicable after a split, an individual without established legal parentage could be disappointed if the Court does not recognize them as a parent and fails to make orders for the child they claim as their own.
Many queer married couples get by just fine with the child’s schools, doctors, and insurance providers without establishing legal parentage under a court order. However, there are many entities, including children’s hospitals, emergency services, schools, and daycares, that require legal parenthood in order to exercise parental rights to the child, such as providing consent to medical treatment for the child.
Adoption is one of the best ways for same-sex couples to establish parental rights in Texas, aside from being the biological parent, and is often required to some extent for both parents in a queer relationship to have parental rights and duties. Adoptive parents gain all the legal rights and responsibilities of the parent-child relationship. Therefore, if you adopt a child, whether as a married couple or individually, you have parental rights even if the marriage dissolves. If parents are looking to adopt together, without one being the biological parent of the child, it is important to keep in mind that under Texas law, child welfare providers can discriminate based on their religious beliefs, including refusing to work with or place children with queer adoptive parents. If you want to adopt in Texas, you should look for a queer-friendly adoption or child welfare services provider.
If, however, one parent gives birth to a child during the marriage, the other can file a second-parent or step-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. There are several circumstances under which this process might be used, including for children conceived using a sperm donor, in vitro fertilization, or surrogacy, whether traditional or gestational.
No matter the method used, if one parent in a queer couple is the biological parent of the child and the other parent is not, it is highly recommended for the couple to do a second-parent adoption for the non-legal parent. This allows you to establish legal rights over the child. Click here to read more about same-sex adoptions.
For same-sex male couples, problems can also arise with surrogacy. Surrogacy is an arrangement where a woman carries and gives birth to a child for another person or couple. The woman who carries the child is called the surrogate, and the person or couple who will become the child's parent is called the intended parent. There are several types of surrogacy, which are categorized based on whether the egg used is the surrogate’s, making her biologically related to the child, or from a donor or intended parent, making the surrogacy only gestational in nature.
In the absence of a well-thought-out and enforceable gestational agreement, , the surrogate’s rights as created by virtue of her giving birth to the child must be terminated before the second parent can adopt the child. A gestational agreement is a legal contract signed by the intended parents and the gestational carrier before fertility treatments begin. It outlines the rights, obligations, and expectations of all parties and ensures that the intended parents are recognized as the legal parents of the child and that the surrogate has no parental rights. Click here to read more about gestational agreements.
Establishing parental rights is only the first hurdle queer parents might face. Should the parents decide to divorce or separate, a judge will decide who should have conservatorship and possession of a child based on what the judge thinks will be in the child’s best interest.
Though difficult, a non-legal parent could have standing to file a claim or conservatorship or possession and access. Standing is the ability to bring a lawsuit. Think of this as getting your foot into the courtroom. Just because a non-legal parent can get a foot in the door does not guarantee that the claim will be successful. That is why it is critical to establish legal rights before disaster strikes if you wish to protect your parental rights over your child.
In Texas, child custody can become complicated depending on the circumstances of the case, and this is particularly true for queer individuals. If you need advice regarding a child custody case in Texas, please reach out to the Hunt Law Firm to speak to an attorney experienced in dealing with same-sex child custody matters.