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The Rights of Lesbian, Gay and Transgender Parents in Texas Family Law Cases

The rights of LGBT parents in Texas family law cases

In Texas, the evolving landscape of family law presents unique challenges and considerations for LGBT parents. This overview delves into the rights and legal nuances these parents face in custody, visitation, and conservatorship cases, reflecting Texas’s commitment to equality and the best interests of the child.

In an era where LGBT people are working towards gaining more widespread acceptance of their lifestyles, it would only make sense for the legal system to follow suit and honor their rights in family law as parents of children.

Fair and equal treatment under the law is what all citizens of the United States seek, and these folks are no different. With gay marriages now being legalized for some time, we as family law attorneys are starting to see cases involving same-sex and transgender parents entering into the family law courts with greater frequency.

The Rights of LGBT Parents

LGBT parents often encounter unique legal challenges, especially in custody and visitation cases. These challenges are more pronounced if the parent has come out as LGBT after an opposite-sex marriage. In such scenarios, the non-LGBT spouse might argue that the parent’s LGBT identity negatively impacts their parenting ability. This argument unfairly targets the parent’s character and requires a strong counter with evidence supporting their parenting skills.

Additionally, LGBT parents in same-sex relationships face distinct legal hurdles if they separate. Often, only one parent is legally recognized, complicating custody battles. Unlike heterosexual relationships, where legal parentage is typically straightforward, same-sex couples might deal with nuances in establishing legal ties to their children.

In Texas, for instance, if only one parent in a same-sex relationship has legally adopted the child, courts may permit a “second adoption.” This process allows the other parent to gain legal recognition, especially common when one partner is the biological parent. Understanding and navigating these legal options is crucial for LGBT parents to protect their parental rights and relationships with their children.

In Texas, you cannot be denied parental rights or conservatorship rights to your child simply because you are LGBT. All custody cases in Texas boil down to a determination over what is in the best interests of your child.

The legal presumption in Texas holds that, unless sufficient evidence suggests otherwise, it is in the best interests of every child to maintain a relationship with both parents. This means that a judge cannot deny you these legal rights to your child simply because they do not approve of your lifestyle or sexual preferences.

The rights of LGBT parents in Texas family law cases

When negotiating with your child’s other parent, you must know you don’t need to agree to overreaching restrictions on your behavior to have a relationship with your child.

For instance, I would not advise you to agree to not live with a member of your sex or bar a significant other of yours from being present during visitation periods. It does not matter whether or not you think that you will ever actually be in a relationship. These sorts of restrictions are overbearing and improper. Your sexual orientation does not affect your ability to be a good parent.

A Walkthrough of Texas Family Law to Illustrate These Points

In a 1985 decision, ‘In the Interest of McElheney,’ the appellate court addressed a case where a mother’s sexual orientation was used against her in terminating parental rights. The court ruled that sexual orientation alone isn’t a valid reason for such a decision.

The 2003 case ‘Z.B.P. v. J.N.P.’ in Ft. Worth focused on a mother moving with her same-sex partner outside the designated county, initially with the father’s permission. When this move seemed permanent, the father sought primary conservatorship due to the child’s long commute. The courts agreed, prioritizing the child’s welfare.

‘Jenkins v. Jenkins’ involved a gay father granted limited visitation rights, later expanded despite the child’s young age and the father’s exposure of the child to harmful situations. The court’s decision to increase visitation rights happened without clear evidence of benefiting the child.

These cases illustrate the nuanced challenges LGBT parents face in custody and conservatorship, emphasizing the importance of child welfare in legal decisions.

LGBT Non-parents Who Want Custody/Visitation Rights

To seek visitation and custody rights as the non-legally recognized parent of a child, you must demonstrate to a court that you have actively cared for, controlled, and possessed the child for at least six months.

That six-month period must not have ended any more than 90 days before the filing date. Note that most courts do not require you to have lived with your child during this period but that you must have had a substantial role in parenting the child.

As a non-legal parent, the standard that you must prove to win custody rights is the same as any parent in your position. The naming of your child’s legal parent as their only parent will significantly impair the child’s physical health or emotional development. The key is that you must file your custody case, known as a Suit Affecting the Parent-Child Relationship, as soon as you can to meet the time requirements stated above.

Protecting Parental Relationships- Tomorrow’s blog post topic

The rights of LGBT parents in Texas family law cases

As a parent, you understand how important and precious your relationship with your child is. As a result, you should know as much as you can about Texas family law to ensure that your rights are protected. We will learn more about this subject in tomorrow’s blog post.

In the meantime, if you have any questions about today’s subject matter or any other topic in family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. We can answer your questions and discuss the services that we can offer to you as a client of ours.

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