The right for same-sex couples to marry, and also divorce, has been in place in the U.S. for several years now. Same-sex relationships have normalized somewhat from being a unique anomaly to a run-of-the-mill occurrence. Even in some of the more conservative counties and courts that we practice in at our firm, gay marriage is now just marriage and gay divorce is now just divorce. Adoptions by same-sex parents are even a normal happening and not something unusual or remarkable.
Even so, the rights to custody of children may not work exactly the same for a same-sex couple as other couples. In many same-sex relationships, one spouse is the blood relation to the child while the other spouse acts as a parent in the relationship, with virtually no difference being seen by the child. But, the non-biological parent may not have any legal rights to the child in the event the relationship ends, in spite of the emotional ties.
The safest way to solidify the legal relationship between a nonbiological parent and a child of the marriage is to go through formal step-parent adoption proceedings. It is easiest to do this when the relationship is good and everyone is happy. This is also the easiest time to avoid doing these necessary steps because things look good and it is largely unnecessary. An adopted parent is legally the same as a biological parent in determining the continuing relationship between parents and child after the end of the marriage relationship.
Short of adoption, the remedies for continuing a relationship with a nonbiological child after the end of the marriage relationship are bleak. Agreement between the parents to continue access is the most obvious remedy. But when a couple breaks up their relationship, sometimes they are unwilling to see the parenting role separated from the relationship to allow such continued access. In that event, the nonbiological parent is faced with seeking to continue a relationship in the court system. However, the law heavily favors legal parents (biological or adoptive) and their ability to make decisions for their children. In fact, the standard to impose court-ordered access is so high that the law says the legal parent has the constitutional right to make parenting decisions about who can be around the child without interference from a judge or court order. The singular exception is when the legal parent’s environment would cause significant physical or emotional harm to the child. Only then can the courts intervene.
While there is a window of opportunity written in the law that in some ways presumes parentage to both spouses for a child born during the marriage, no court in Texas has applied this law to a same-sex relationship. Even in hetero relationships, this rule is rebuttable when DNA rejects the parents biological connection. It would seem this possible remedy may not actually provide any security for a nonbiological parent in a same sex relationship even once litigated in the courts.
The message, loud and clear, to same sex couples who adopt or birth children during their relationship is that both parents must be made legal parents through adoption to provide the most security for the child in the event the relationship breaks up.