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.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.