LGBT relationships are still a relatively new construct in a legal system that has traditionally been focused almost exclusively on two-parent, opposite gendered relationships. Some courts lag behind in addressing custody issues with same-sex partners, mostly due to inexperience and inconsistency in the laws.

Because same-sex parents cannot biologically birth children together, the legal definition of who qualifies as a parent is more complex in LGBT custody cases. One partner may be the legal parent, either from biological birth or adoption. The other parent may be an emotional parent but lack the legal formalities of technical parenthood. Unfortunately, these situations are relatively simple in the context of legal custody orders – the legal parent will retain custody of the child. The secondary, emotional-but-not-legal parent probably will not be granted any legal rights to the child and will find it extremely difficult to receive any court-ordered access to the child beyond the discretion of the legal parent. The non-legal parent cannot be ordered to pay child support either.

Same-sex partners can be considered both legal parents in one of 3 scenarios:

  • Both parents adopt the child.
  • One parent is biologically the child of one parent and the other parent adopts the child.
  • Child born to a legally recognized marriage where the law recognizes the non-biological parent as a presumptive legal parent.

While some states may recognize the third option as a route to legal parenthood, Texas is not one of them at this time.  There has simply been little legal precedent to come before the Texas courts on this issue, so to press the rights of a non-biological spouse to legal parentage, a case will eventually have to push the issue to the expense of a trial and appeal.

Where two legal parents in a same sex relationship seek custody of a child, the case resembles that of a more traditional custody case, with the same issues and factors being applied.  The best interest of the child will be the overarching consideration with issues like personal relationships, employment, emotional health and stability, ability to support both parents’ relationship with the child, and the child’s preference being considered.

For LGBT parents seeking to establish court orders regarding a child, the best option in almost every situation is to reach an agreement. Compromise may not be ideal but if the agreement falls within the range of possible outcomes in the court then it is almost certainly better than protracted and expensive litigation.

If you are faced with contested litigation, do your research and understand the nuances of Texas laws. Ultimately, acknowledge whether you are willing to be the “test case” for pushing the envelope of LGBT custody rights if the situation requires it. Last, Find a legal team that has experience in the LGBT custody arena but also is expert in traditional custody cases.

 

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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.