While same sex marriage has been legal for some time now, Texas law has yet to completely catch up. Because of this, unique issues may arise for same sex couples wanting to sort out child custody issues. Issues of legal parentage, child support, and visitation rights frequently arise.
Becoming a Legal Parent
Despite both spouses acting functionally as parents to children born or adopted during the marriage, same sex couples face the issue of establishing parentage, in legal terms. While the exact dynamic of the family varies from case to case, most often we see a couple who has either adopted or decided to have one spouse be the biological parent of their child. These decisions directly feed into whether the couple will have issues establishing parentage for the purpose of custody, conservatorship, and child support.
There are multiple ways to become a legal parent:
- The biological parent immediately gains status as a legal parent.
- When both parties have adopted their child, they are legally declared parents and therefore can proceed with custody decisions much the same as a heterosexual divorce case.
- The same can be said for parties to a gestational agreement for assisted reproduction (discussed below).
- If same sex spouses are listed together as the intended parents of the unborn child, they have attained legal status as parents.
Again, this would allow their custody case to proceed normally. A court can also formally declare a party a legal parent.
What are Gestational Agreements?
Gestational agreements have become more commonplace as different modes of assisted reproduction have developed over the years. The need for a gestational agreement arises when the intended legal parents of the child have an agreement with a gestational mother to birth the child. Sometimes there is a separate donor involved, and other times, one of the intended parents is the donor. The agreement exists to ensure that the gestational mother, and if she is married, her spouse do not have parental rights to the child being born. Instead, the intended parents become legal parents by signing and validating the agreement.
Although not their contemplated purpose, gestational agreements can be helpful if same sex spouses choose to divorce. The agreement serves as proof that both parents (not just biological) are legally vested with the rights and duties of all parents pertaining to their children. Subject to the best interest of the child, both parents would have the ability to share custody, send or accept child support, and make legal decisions regarding their child.
Common Child Custody Issues in Same Sex Divorce Cases
There are a plethora of issues pertaining to child custody in same sex divorce cases. Most commonly, problems tend to stem from the occurrence of a biological parent and a spouse who raised the child in tandem, but the non-biological parent never attained legal parent status through adoption or adjudication.
The Texas Family Code has not been amended to encompass gender neutral relationships which has caused major problems for same sex divorcing spouses looking to have custody of their children. This becomes an issue particularly in the context of a biological and non-adoptive pair because they do not have access to the “presumption of paternity” that heterosexual spouses enjoy.
Texas Family Code section 160.204 lays out the circumstances for when a man is presumed to be the father of a child born to the mother, whom he is married to. One can see how this is problematic for same sex couples. While a biological parent should have no issues with establishing their parentage, a same-sex spouse can never take advantage of this presumption because they are either not married to the birth mother or their spouse is not giving birth. Put more simply, two husbands choose to have a child where only one can be the donor. While donor dad is a legal parent, non-donor dad cannot be a presumed father because he is not married to the birth mother of his child. Similarly, two wives have a baby with one choosing to carry the child. Because non-birth mom needs to establish maternity and not paternity, she cannot take advantage of the presumption.
The inability to establish oneself as a legal parent breeds other issues in a child custody case. If a caretaker cannot solidify their legal status as a parent, they automatically lose standing to ask for custody in their divorce. Because the spouse does not have legal parent status, they have no legal right to see their child. A court may award some visitation rights if the parent can prove the child was in their care, custody, control, and possession for a legally significant period of time. However, they are unlikely to be awarded much, if anything, in terms of time with their child. Additionally, because the spouse is not a legal parent to their child, they also cannot be asked to pay child support to the custodial parent, which can be detrimental to the child’s wellbeing.
As you can see, same sex child custody disputes are complicated issues that require extreme care and fierce advocacy. If you are looking to explore your options as a same sex parent contemplating divorce, reach out to Scroggins Law Group to set up a consultation with one of our experienced attorneys.