We’re approaching seven years since the Supreme Court made same-sex marriage legal across the United States in the landmark case, Obergefell v Hodges. This ensured all adult couples could get married in all 50 states. However, there are some quirks in Texas state law that remain different for LGBTQ couples, especially when it comes to divorce.
Texas law can get complicated for same-sex couples who are getting divorced and either already have children or are currently expecting. We want to walk you through how the process will work and steps to prevent your children from getting caught up in it all.
Defining legal parentage in Texas
In Texas, biological and adoptive parents are able to file for custody or a continued relationship with the child. People who have had a child in their care for at least six months can also file a claim as long as the child remained in their care within 90 days prior to the claim being filed.
This can be a bit more complicated for LGBTQ couples because there are often different biological parents even when one partner gives birth. While the courts will consider your situation, the case-by-case review of legal parental rights could put your relationship with your child at risk if your partner is the one who gave birth and legal documentation of your parentage was never established.
Protecting your legal rights as a parent
The most important step any couple can take is legally establishing parentage from the beginning. If you and your partner decide to start a family, you should make sure you both file for parental rights regardless of which partner is giving birth or providing an egg or semen for a surrogate to carry your child.
If you’re welcoming a newborn into your family, Texas law allows BOTH partners to sign a gestational agreement as long as you are legally married. This establishes both parents legally regardless of whether only one is an actual biological parent or if a third party is giving birth to a child you are adopting. Both of your names can be added to the birth certificate (it’s important to know birth certificates are not always the best document to use in custody proceedings so you should take additional steps beyond just having your name on the certificate).
Previously, Texas law required same-sex couples to file for adoption separately as two single parents even if the couple was married. Thankfully, adoption rights have expanded to include LGBTQ couples so you can file for adoption together. It’s important that you both do so and that all documentation includes both of your names so neither partner gets the advantage should the marriage fail.
Fight for your child
Ultimately, we want every family to work together and put the children first. We know not all marriages work out, but we want to work for you to make divorce as smooth as possible. Protect your rights as a parent and contact Divorce in Texas today.
Divorce Wise™
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