Child Custody Issues After Obergefell
In Texas, parentage presumptions traditionally flow from the woman who gives birth to a child, with her husband presumed to be the child’s legal father. The legal argument that same-sex couples should get identical parentage presumptions as those of opposite-sex couples seems to be supported by the language in the Obergefell opinion. But the question is complicated because Texas law has traditionally been hostile to same-sex marriage. Current Texas law does not yet apply parenting presumptions to same-sex couples. For that reason, Texas same-sex couples having children should do an adoption or get a judgment awarding conservatorship rights to both parties.
Where both parties have established equal legal rights, child custody disputes for same-sex parents will be handled just as they are for straight couples, where a judge will consider a variety of factors to determine the outcome that is in the best interests of the child. To learn more about the general rules that apply to determining child custody, see our Child Custody page.
If Only One Party Meets The Definition Of “Legal Parent”
In Texas, parties who do not fall within the definition of “legal parent” must be diligent and well represented when trying to secure visitation, as well as legal rights similar to those of a legal parent. Ironically, these parties rarely can be court ordered to provide financial support to the child, but in most situations this second “parent” would be glad to contribute financially.
It is hard to find a consistent thread in same-sex child custody cases, but there are some things that seem only right when you are facing a breakup that involves kids. For example, put your child’s emotional and physical needs first. Whether you are the legal parent and believe that your ex-partner should not visit your child, or you are the second parent seeking to maintain a relationship, you must make your child’s emotional needs — not yours — your highest priority.
Whichever side of the custody dispute you’re on, remember that you and your kids will greatly benefit if you seek help before you act.
In addition to determining parental and custodial issues at the beginning of the parenthood journey, using collaborative law or mediation to establish the post-split custody, visitation and financial support obligations, would get matters settled sooner than waiting for a court decision. Because of the uncertainty of the courts when it comes to same-sex breakups, and the added time and costs to an already painful process, it is in everybody’s best interest to have all custody issues settled more expeditiously.
Aside from the legal rights, the best way to protect your children from a custody dispute is to remember that they are not the ones getting divorced. They should not be used as pawns.
Attorney Adam L. Seidel is former president of the Dallas LGBT Bar Association, and a charter member of the North Texas GLBT Chamber of Commerce. He has represented many clients across North Texas with same-sex family law issues.