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  • Writer's pictureAngela Faye Brown

Lesbian Custody Issues 101: Does the turkey baster give you more rights?

On June 26, 2015, the Supreme Court legalized same-sex marriage in all 50 states. Most people assume the Supreme Court's decision also granted lesbians and all other same-sex partners equal parental rights to children born of the marriage. Unfortunately, that assumption is incorrect. There are still hurdles that lesbian couples must overcome if both partners want their parental rights recognized. To help understand the custody issues that still remain, here is a simple guide to understanding custody for lesbian couples.

If my partner and I are married, do we automatically have the same parental rights?

Even though lesbian couples can legally marry in Texas, they don't automatically have equal parental rights to children born of the marriage. In Texas, the understanding of maternity and paternity is still a man and a woman who have conceived, adopted, or otherwise obtained legal parenthood of a child. Because of this, when determining parentage for lesbian couples, state law considers the birth mother to be the biological parent. The other partner has to acquire parental rights through other legal means. This holds true even if the birth mother used the other partner's egg in the insemination process.

How can the non-biological parent acquire parental rights?

The most common way for the non-biological parent to acquire parental rights is through adoption. Lesbian couples can go through the adoption process jointly as a couple or apply for a second-parent adoption.

What is the difference between a joint adoption and second parent adoption?

In a joint adoption, the married couple petitions for adoption using both parents' names. On the other hand, a second-parent adoption is the adoption of a child by the non-biological parent. Often lesbian couples use the second-parent adoption process if they are not married. Still, there are circumstances when a couple might want to choose a second-parent adoption over a joint adoption.

When is a second-parent adoption better than a joint adoption for a lesbian couple?

When a Texas court decides on the adoption or custody of a child, their inquiry focuses on what would be in the child's best interest. Because of this standard's subjective nature, a judge may decide against finalizing a joint adoption because of a personally-held belief that it's not in the child's best interest to have lesbian parents.

Judges are unlikely to explicitly state that sexual orientation is the reason for the denial. However, Texas law does allow the court to consider evidence of sexual orientation or sexual activity with the same sex as a factor in determining what's in the child's best interest. In these instances, it's vitally important to have a seasoned attorney by your side who knows the court's temperament and can help you decide which process is best for your family.

What happens if we split up and there is a custody dispute?

If the non-biological parent legally adopted the child, whether, through the second-parent or joint adoption process, they enjoy the same rights and responsibilities as the biological parent. So theoretically, the court will make a custody decision based on the same factors it uses to determine custody for any other family.

However, if the non-biological parent has not completed or gone through the adoption process before the custody case is filed in court, Texas law authorizes a rebuttable presumption that the biological parent should be awarded primary custody over the non-biological parent.

Need help with your same-sex adoption or custody dispute? Angela F. Brown and Associates can help. We are an inclusive firm that dedicates itself to helping all families regardless of their race, gender, creed, or sexual orientation. If you need help, contact our office to schedule a private and confidential consultation today.

This is the fourth article in our Unthinkable Series. We'll publish articles about some of the unique custody situations we've encountered in our practice with tips to help you overcome similar challenges during the series. Then we'll host a live Q&A session where you can get your custody questions answered in real-time later in the week. If you have questions about this series or would like to submit a question for our live Q&A, please contact our office here.


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