For most couples with children, a breakup in their relationship does not equate to losing their children. However, when it comes to same sex couples, particularly those who never married, there are legal barriers that prevent them from asserting their rights as parents to their children.

In a recent case out of the Fourth Court of Appeals in San Antonio, a same sex couple conceived a child through artificial insemination. A year later, the parties separated, and the biological mother (Bio Mom) of the child moved to Texas, subsequently denying her former partner (Non-Bio Mom) any access to their child.  Non-Bio Mom filed a lawsuit seeking to establish legal standing to assert her parentage through two separate channels: first, she filed for divorce based on common law marriage, and second, she sought joint managing conservatorship through the adjudication of parentage. Parentage is adjudicated when a court formally orders the existence of a parent-child relationship.

Non-Bio Mom’s case was dismissed because she lacked standing, which is a legal hurdle overcome only by satisfying specific statutory requirements—none of which were met by Non-Bio Mom’s particular set of facts. The trial court denied the existence of a common law marriage between the parties and dismissed Non-Bio Mom’s statutory claims to standing as both an intended parent and a party with actual care, possession, and control of the child for at least six months.

Non-Bio Mom’s claim as the intended parent was dismissed because the statute only applies to men claiming to be fathers.Her claim as a party with actual care, possession, and control for at least six months was dismissed because the applicable period of time had ended more than 90 days before Non-Bio Mom filed her lawsuit, and the Court of Appeals further stated that she was not entitled to “equitable tolling” of her claim (essentially an extension of the statute of limitations which would preserve Non-Bio Mom’s claim) based on Bio Mom’s representations that the parties would reach an agreement.

Had Non-Bio Mom’s facts been tweaked slightly, she may have had stronger footing to defeat Bio-Mom’s motion to dismiss her lawsuit. For instance, another provision of the Texas Family Code provides that a man is presumed to be the parent of his child he lives with the child for two years, and he represents to others that he is the father of that child. However—note the pronoun usage—the kicker here is that the “Presumption of Paternity” appears to preclude a parental presumption for mothers. While the Uniform Parentage Act (UPA) is intended to be gender neutral, Texas courts have not consistently acknowledged this concept, nor has the Texas legislature adopted gender-neutral verbiage. See Does Heather Really Have Two Mommies? 

The bottom line is that any unmarried individuals in same-sex relationships with children who are contemplating a breakup should seek legal counsel prior so they can fully explore and understand all of the potential outcomes and complications. Married individuals in same-sex relationships may also face post-breakup hurdles depending on the date of their marriage and whether they are listed as a parent on their child’s birth certificate. It is imperative that individuals seek legal counsel from attorneys who handle these types of cases regularly and understand all aspects of the law as it applies to each individual case—both from the trial court level and from the appellate level.


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.

Can a gay man get custody when exiting a heterosexual relationship? I read with interest this article Gay Parent’s Claim for Custody. The article poses the challenges facing a gay man in getting custody of a child when exiting a heterosexual relationship. Some courts do not view gay men as equal to mothers and even hetero-fathers in custody cases. Prevailing prejudices and discrimination remains with some judges.

The best interest of the child remains the prevailing standard that any judge must apply in a case regarding custody of a child. No parent should expose their children to unstable new romantic relationships or unseemly behavior. Focusing on the stability of the parent to provide a good environment for the child can overcome the prejudices that exist. For example, a partnership between two stable men in an enduring relationship may be more nurturing and reliable for the child than a woman with many relationships and no particular connection. Such an unstable relationship by the mother would demonstrate a negative aspect of love and romance to the child.

The parental bond and involvement in the child’s life will also provide a good area of evidence to help boost a gay father’s request for custody. A gay father who is involved at school and with extracurricular activities will have advantages over an uninvolved mother. Helping with homework, knowing the child’s teachers and friends, and attending to medical issues are all important factors in a custody case, regardless of sexual orientation of the parent.

The bottom line, even in conservative courts and with conservative judges, a child-centered focus of the matters related to custody of the child can overcome the prejudices that may still exist. As with any parent, regardless of orientation, the involvement in the child’s life and emphasis on the child’s wellbeing will outweigh other factors most of the time.

Suzan and Kimberly McLaughlin, a married lesbian couple, conceived a child using artificial insemination with an anonymous donor in 2011.  When the parties later separated in 2013, Kimberly began restricting Suzan’s access to the child.  Suzan filed a lawsuit seeking to be recognized as a parent that same year.  In April 2016, the trial court ruled that Suzan is a legal parent of the child under Arizona law.  Kimberly appealed.  In October 2016, the Arizona Court of Appeals affirmed the trial court’s ruling that Suzan is a legal parent of the child. Kimberly then appealed the case to the Arizona Supreme Court, who affirmed the Court of Appeals on September 19, 2017, stating that that: “[i]t would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.” Kimberly then filed a petition for writ of certiorari to the U.S. Supreme Court, which was denied on February 26, 2018.

What is the effect of the U.S. Supreme Court denying Kimberly’s petition? Well, in Arizona, the denial means that the Arizona Supreme Court’s decision stands. The denial of a petition for certiorari does not mean that the Supreme Court agrees with the decision of the Court of Appeals, only that the case will not be reviewed. This means that while the denial is significant for the parties to the case, the impact the denial may have on other cases is unclear. Basically, the denial of a petition for writ of certiorari means that the appeals court decision agrees with the current law. In this case, the Arizona Supreme Court ruled consistent with its interpretation of Obergefell by extending the right to marry to include the subsequent benefits of marriage, including parentage. Since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, many cases have recognized that married same-sex parents must be treated equally as married opposite-sex parents.  In June 2017, the U.S. Supreme Court held in Pavan v. Smith that Obergefell requires states to treat all married couples equally.  The Arizona Supreme Court’s decision in McLaughlin is consistent with settled law and should be instructive to other states considering this issue.

Read more about the case here:



So, can a lesbian couple adopt a refugee kid through Catholic Charities of Fort Worth?  Funny you should ask.

When Fatma Marouf and Bryn Esplin, both attorneys and professors at Texas A&M University, learned that there were as many as 300,000 homeless or unaccompanied refugee children worldwide, they decided to adopt or foster one.   They reached out to Catholic Charities of Fort Worth, a federally-funded agency specializing in placing refugee children, and set up an interview.  During the interview, an employee told Marouf and Esplin that the agency only adopts to families who “mirror the holy family,” and because they were a same-sex couple, they would be disqualified. (Didn’t the “holy family” initially consist of an unwed pregnant teen? I digress.)

Lambda Legal filed suit on behalf of the couple, rightfully claiming that their equal protection rights under the Fifth Amendment of the Constitution had been violated.  As stated in their complaint, “[t]here is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents.”

No valid basis and no excuse.

Read more about the case and the complaint here:


The Arizona Supreme Court handed down an opinion recently finding a presumption of maternity for a married lesbian couple where the child was born during the marriage. This ruling applies the presumption of paternity for a heterosexual couple to a same-sex couple. This is what many believe the correct application of the law to be post-Obergefell. This question has not been finally decided in Texas, and a Beaumont ruling actually finds the opposite of this ruling – that the presumption of maternity does not apply to a lesbian couple.

The Arizona court examined the application of the constitutional protections from Obergefell in reconciling the paternity statutes. Their analysis follows:

Kimberly argues that the Court cannot interpret § 25- 814(A)(1) gender neutrally because doing so would effectively rewrite the statute, thereby invading the legislature’s domain. Instead, Kimberly contends that this Court must wait for the legislature to remedy this constitutional defect. This argument misperceives this Court’s constitutional role and responsibility when faced with a statute that violates the equal protection of the laws guaranteed by the Fourteenth Amendment.

To place the remedial issue in context, it is useful to review some settled constitutional principles. The United States Supreme Court’s interpretation of the Constitution is binding on state court judges, just as on other state officers. See Cooper v. Aaron, 358 U.S. 1, 18–19 (1958). When the Constitution conflicts with a statute, the former prevails. Marbury v. Madison, 5 U.S. 137, 178 (1803) (noting “the constitution is superior to any ordinary act of the legislature; [and] the constitution, and not such ordinary act, must govern the case to which they both apply”); The Federalist No. 78 at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961). It is no answer to a constitutional violation in a pending case to assert that it could be remedied by legislative action. “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” Obergefell, 135 S. Ct. at 2605.

When a statute grants benefits but violates equal protection, a court has “two remedial alternatives.” Califano v. Westcott, 443 U.S. 76, 89 (1979). “[A] court may either declare [the statute] a nullity and order that its benefit not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Id. (quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring in result)). State court judges face the same remedial alternatives when a benefit statute violates equal protection. See Wengler, 446 U.S. at 153 (remanding remedial question to state court because “state judges are better positioned to choose” whether extension or nullification of a state benefit statute is more “consonant with the state legislature’s overall purpose”). This remedial choice is not confined to circumstances in which the state grants monetary benefits but instead applies to other statutory classifications violative of equal protection. See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686–87 (2017) (concerning statutes conferring U.S. citizenship on children born abroad); Welsh, 398 U.S. at 361– 63 (Harlan, J., concurring) (concerning statute authorizing exemption from military service for conscientious objectors).

Which remedial alternative a court elects “is governed by the legislature’s intent, as revealed by the statute at hand.” Morales-Santana, 137 S. Ct. at 1699. In making this assessment, a court should “measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.” Heckler, 465 U.S. at 739 n.5 (quoting Welsh, 398 U.S. at 365 (Harlan, J., concurring in result)). Generally, the proper remedy is extension, not nullification. Morales-Santana, 137 S. Ct. at 1699.

Because § 25-814(A)(1) is now a constitutionally defective state-benefit statute, we must determine whether to extend the marital paternity presumption to similarly situated women such as Suzan or to nullify it altogether. Neither party here requests that this Court strike § 25- 814(A)(1). This is unsurprising because extension, as opposed to abrogation, is more consonant with the purposes of the marital paternity presumption.

For these reasons, we extend § 25-814(A)(1) to same-sex spouses such as Suzan. By extending § 25-814(A)(1) to same-sex spouses, we ensure all children, and not just children born to opposite-sex spouses, have financial and emotional support from two parents and strong family units.

Many lawyers interpret the status of the law for same-sex lesbian couples where a child is born during the marriage to require a Suit to Adjudicate Parentage as with other heterosexual couples. Most of the time we tell parents to do a second-parent adoption to be safe and establish legitimacy. But many experts in the field feel that this is an unconstitutional burden upon same-sex married parents that denies equal protection under the law.

Until there is a Texas case on point, it is still a good idea to cover all avenues just to be safe.

Read the opinion:

The United Nations ruled in August that an Australian law that prohibits divorce between same-sex couples validly married from another country to divorce violates international human rights obligations.

The case was taken to the UN by Fiona Kumari Campbell, who married her ex-partner in Canada in 2004, before the couple separated later that year. Dr Campbell wants to dissolve the marriage for personal and practical reasons, including having the option to remarry in the future and implications for overseas travel. However, as same-sex marriage is not legal in Australia, Dr Campbell marriage is not officially recognised and therefore cannot be subject to divorce proceedings. She cannot get divorced in Canada either, because she did not live there for at least a year.

The UN found that the differential treatment was discriminatory which the UN Human Rights Commission finds unacceptable.

See article: Same-sex divorce ban breaches human rights

I still get questions about how Texas’ informal (aka common law) marriage statute applies to same-sex couples prior to the date that the Obergefell opinion was released. Remember that Obergefell found that the provisions of the Defense of Marriage Act prohibiting marriage between couples of the same sex are unconstitutional, thus legalizing same-sex marriage.

The requirements for an informal (aka common law) marriage in Texas are 1) agreement to be married, 2) holding out as married, and 2) cohabitating in Texas. Once married, there is no “informal divorce” – the couple must proceed with a regular divorce proceeding under Texas law.

What happens if a couple performed the elements of a Texas informal marriage prior to the effective date of Obergefell? What if the couple was calling themselves marriage starting some time way before same-sex marriage was legalized, including behavior that checks off all three informal marriage elements?

The answer is – or should be – that the informal marriage statute applies to same-sex couples just as any other couple in Texas. The fact that Obergefell found the underlying law unconstitutional means that the law was void as if the law never existed. If the law never existed, then same-sex marriage doesn’t really have a “beginning” date. So, if a couple started acting like they were married, calling each other husband or wife some time back, acting married to all their family and friends, and lived together in Texas, then they may very well be informally married. An actual agreement to be married can be inferred from the conduct.

The real wrinkle comes if a couple met all of the elements of an informal marriage, but broke up some time before Obergefell and then moved on to another relationship. While Texas does not have informal divorce, if the parties are separated for 2 years then the law presumes that there was never an agreement to be married.

A few months ago, South Carolina affirmed this concept, finding that the Obergefell opinion applies “retroactively”. The result of the opinion was that a recently separated same-sex couple were common law married since 1987. See Can same-sex couples be common law married? (I think the word “retroactive” is imprecise, since a finding that a law is unconstitutional actually erases the law totally, but I’m being a little nit-picky here.)

Also, Pennsylvania upheld a common law marriage between a same-sex couple, rejecting a trial court’s ruling that it was “legally impossible” to form a same-sex marriage prior to the Obergefell ruling. See Court in another state recognizes pre-Obergefell common-law marriage between gay partners.





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.


ss marriage trendGallup conducted their annual poll of Americans’ support for same-sex marriage. The results… 64% of Americans think same-sex marriage should be legal. This is the highest approval rating in US history. In 1996, when Gallup first conducted this poll, only 27% of Americans approved.

This year’s poll also revealed that, for the first time, a majority of Protestants support gay marriage at 55%. Of Catholics, 65% support gay marriage this year.

Among political parties, 74% of Democrats and 71% of Independents support same-sex marriage, while only 47% of Republicans favor it. However, the Republican numbers in favor have tripled since 1996, when they were at 16%.

Setting aside the question of the legality of marriage between gay couples, Americans support the legality of gay relationships at a level of 72% this year, up from 43% in 1977, the first year that issue was polled.

This poll was based on telephone interviews conducted in early May 2017 with random sample of over 1,000 adults across America. The margin of error is +/- 4%.