Same Sex Family Law Issues: Navigating Custody, Support, and Adoption

For LGBTQ people in Texas, there can be some unique family law considerations. While the law largely protects equal rights for same sex couples, there are still a number of different challenges that can arise. At Thornton Esquire Law Group, PLLC, our Houston family law attorney has the knowledge and experience to handle these family law issues in Texas, including child custody, child support, and adoption.

Same-Sex Parents Have the Same Fundamental Rights in Texas Family Law Cases

First and foremost, the most important thing to emphasize about Texas law is that same-sex married couples have the same constitutional right to civil marriage as opposite-sex couples. The Supreme Court of the United States has also held that states cannot deny same-sex spouses marital benefits, including legal recognition connected to parenthood, that they provide to similarly situated opposite-sex spouses.

In a Texas divorce or custody case involving two legally recognized parents, the court applies the ordinary rules governing conservatorship, possession, access, and child support. Texas Family Code § 153.002 makes the best interest of the child the primary consideration when a court determines conservatorship and possession issues. Texas law also presumes that appointing the child’s parents as joint managing conservators serves the child’s best interests, subject to important exceptions.

Where this Fits Together: A parent’s sexual orientation does not create a separate custody standard. The central questions remain the child’s needs, each parent’s relationship with the child, safety, stability, caregiving history, and the other circumstances relevant to the child’s best interests.

Establishing Legal Parentage Can Be the Most Important Issue

For some same-sex families, the difficult question is not which parent should receive greater possession or decision-making authority. It is whether both adults have legally established parental status in the first place. Notably, Texas Family Code Chapter 160 still contains parentage provisions drafted largely in gender-specific terms. For example, § 160.201 separately describes establishing a mother-child relationship and a father-child relationship, while § 160.204 describes presumptions of “paternity” applicable to a man married to the child’s mother.

Federal constitutional law requires states to extend marriage-related legal benefits equally to same-sex spouses, but couples should not assume that biology, marriage, a birth certificate, or an informal parenting arrangement resolves every possible parentage issue. It is a distinction that can become critical after separation. A legal parent starts from a much stronger position than someone whom the law treats as a nonparent. Texas law gives parents significant presumptions in disputes with nonparents. For that reason, establishing parentage formally can provide important long-term protection.

Custody and Visitation Depend Heavily on Legal Parent Status

Texas uses the terms “conservatorship,” “possession,” and “access” for many issues commonly described as custody and visitation. It is useful for parents, same sex or otherwise, to have an understanding of how Texas law works for conservatorships, possession, and access. When both members of a same-sex couple are legal parents, Texas courts can determine those issues using the same framework that applies to other parents.

The court may decide which parent has authority over major medical, educational, and other decisions, where the child primarily resides, and how the parents divide periods of possession. However, these cases become more complicated when only one adult clearly qualifies as a legal parent. A former partner who helped raise the child does not automatically receive the same legal rights as a parent simply because that person acted in a parental role.

Child Support Rules Apply to Same-Sex Parents

Once legal parentage is established, Texas child support law applies without a separate set of rules for same-sex parents. Under Texas Family Code § 154.001, a court can order either or both parents to support a child. In most cases, the support obligation continues until the child turns 18 or graduates from high school, whichever occurs later, unless another statutory circumstance applies.

Texas courts generally calculate guideline child support using the obligor’s net resources and the applicable percentage under Chapter 154. The court can consider statutory factors when determining whether application of the guidelines would be unjust or inappropriate. Again, parentage matters. A person who has legally become a child’s parent may have both parental rights and parental financial obligations. By contrast, simply helping raise a partner’s child does not necessarily create the same legal support obligation.

Same-Sex Couples Have Equal Adoption Rights in Texas

Texas law does not prohibit adoption based on the sex of the prospective parents. Texas Family Code § 162.001 provides that an adult may petition to adopt an eligible child, and § 162.002 requires both spouses to join the adoption petition when the petitioner is married. Following Obergefell, married same-sex couples must receive the same treatment as other married couples. A married same-sex couple can therefore jointly adopt a child in Texas.

Stepparent adoption is also available to same-sex spouses. Under § 162.001(b)(2), a person may adopt the child of their spouse while that spouse retains parental rights. If another legal parent exists, however, that parent’s rights generally must first be terminated, or the termination action can be joined with the adoption proceeding. The child’s existing parent joins the adoption petition with the spouse seeking to adopt.

We Handle LGBTQ Family Law Matters in Southeast Texas

Thornton Esquire Law Group, PLLC is a boutique law firm that handles a full range of family law matters in Houston and throughout Southeast Texas. With the experience needed to help LGBTQ people protect their rights, we can help you with divorce, child custody, child support, and a wide range of other matters. Do not go it alone. Your initial consultation with our Houston same sex family law attorney is strictly confidential and carries no additional obligations.

Contact Our Houston Same Sex Family Law Attorney Today

At Thornton Esquire Law Group, PLLC, our Houston family lawyer has the knowledge, skills, and experience to help LGBTQ individuals. If you have any questions about the process, please call us at (888) 378-1784 or contact us online today to set up a completely confidential consultation. With an office in Houston, we handle same sex family law matters throughout the region, including in Harris, Fort Bend, Brazoria, Galveston, and Montgomery counties.