There are two common situations in which LGBT parents face custody cases. The first involves a time when a person enters into a different-sex marriage and has children, but later divorces and discovers that he or she is gay, lexbian, bisexual, or transgender. This situation comes about frequently and many LGBT parents have children as a result of hetero-sexual marriages. The heterosexual parent may try to gain an advantage in the custody situation by asking the court to consider the sexual orientation or gender identity of the LGBT parent. Many judges or jurors remain biased and could consider the LGBT parent’s orientation or identity as a negative factor in determining parenting orders.
The second situation in which LGBT parents face custody cases is when a same-sex couple decides to have or adopt a child together and then separate. Often, one member of the couple is the legal parent, and the other member of the couple has no legal relationship with the child. This presents unique legal issues that are not present in most custody disputes between heterosexual parents.
A parent’s sexual orientation should be irrelevant to parenting determinations, including custody and visitation, unless the parent’s actions are actually directly harming the child. The mere possibility that a child might experience future societal discrimination is not enough to establish actual harm. It must be shown that there is specific evidence of direct harm.
The legal rights of a “parent-like” relationship between a child and a person without a legal parental relationship with a child is not clear under Texas law. Many factors weigh in the consideration for whether such a person could obtain a court ordered relationship over the objections of the legal parent or parents. Such considerations include the quality and quanity of access between the “parent-like” person and the child, the amount of parenting control that is exercised by the “parent-like” person relinquished by the legal parent, and how quickly the “parent-like” person seeks to establish the relationship at the courthouse.