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.