If you are a nonbiological parent to a child, you should want to look for ways to legalize your relationship with your child to protect your rights.
As a Lesbian, Gay, Bisexual, or Transgender (LGBT) parent, adoption is the most logical and straightforward method of doing so. If you can adopt your child, you will be recognized as the child's legal parent and have all of the same rights and responsibilities as to that child as any biological parent.
Second Parent Adoption for an LGBT parent
Suppose you are in a marriage or other relationship with a person who is the child's adoptive parent, and you are LGBT. In that case, you can establish those legal rights and responsibilities for yourself by getting a second-parent adoption.
As the partner of a legal parent, you can adopt the child without actually having to affect your partner's already established legal rights and responsibilities to that child. There currently are no appellate cases (higher court) that directly comment or rule on this issue. Still, counties in Texas have found that the Texas statutes that cover adoptions authorize this sort of arrangement and process for LGBT parents and their partners.
To give yourself the best opportunity to have a court find that this is appropriate and warranted in your situation, you should consult with an experienced family law attorney who understands and is knowledgeable of the law and this process of second-parent adoption. It is not a widely known procedure to interview attorneys until you can find one aware of your rights under the law. Those attorneys with the Law Office of Bryan Fagan, PLLC, would be an excellent place to start.
Examples of adoption cases that have worked successfully for LGBT families
In Travis County (Goodson v. Castellanos), a female same-sex couple wanted to adopt a child together. As we outlined above, one partner adopted a child, and the second partner later did a second-parent adoption. A year later, when the couple went their separate ways and ended the relationship, the first partner attempted to challenge the legitimacy of the second adoption.
A Travis County judge ruled that the second parent adoption was not void. The fact was that the court that approved the adoption had jurisdiction over the case and that once an adoption is finalized, there cannot be an attack on that adoption afterward.
A second case that may interest you all comes from here in Harris County. A Houston judge in Hobbs v. Van Stavern ruled similarly that a child's biological mother could not attack a second parent adoption three years after the adoption took place. These rulings should show that adoption is complicated to overturn once approved by a judge who has jurisdiction over the case.
A Suit Affecting the Parent-Child Relationship as a means to establish legal paternity of a child
Besides an adoption, other options can allow you to have limited rights to a child that you are not the legal parent of. A Suit Affecting the Parent-Child Relationship (SAPCR) is one such option. If you can gain custody rights to a child through a SAPCR case, then you gain the ability to request custody and visitation rights to your child even if you and the child's legally recognized parent cease to be in a relationship.
Despite the advantages that a SAPCR order does provide, it does not grant all rights and responsibilities of parentage to you. Your child would not be able to inherit from you if you were to pass away or be able to take advantage of Social Security Survivor's insurance. If you are interested in making sure a child can inherit from you after you pass away, adoption is a preferred method to do so.
Texas case law related to SAPCR cases
In re Smith, a case in Beaumont saw a same-sex couple have twins via artificial insemination. When the children reached the age of four months, both parents asked a court to become conservators of the children.
The children's biological mother later challenged an order that granted both parents the rights of managing conservators. On appeal, the court ruled that the nonbiological mother could not initiate the initial SAPCR case because she had not yet had control, care, and custody of the children for the requisite six-month period that Texas law requires.
What other options are available to non-legal parents of children in LGBT families?
While adoption and SAPCR proceedings are the two most common methods to protect your rights as an LGBT parent towards children, you are not a legal parent. It is important to note that while I have stated that second-parent adoptions are possible in Texas and have even pointed out courts that have honored these processes on appeal, it is not a given that your second-parent adoption will go as smoothly.
The Texas Family Code has not addressed this issue yet, which means that judges only have a precedent from other courts to base decisions on. This means that your judge could theoretically not allow a second-parent adoption in your situation.
With that in mind, a parenting agreement is another option that you can pursue to establish yourself as a person with custody rights to a child. While a parenting agreement would not create legal rights in yourself as a parent to the child in question, this is an option that can be pursued as a last-ditch effort to formalize your relationship with a child if you are an LGBT individual.
In so far as parenting agreements are concerned, there are no cases yet in Texas (that I am aware of) that relate to this subject.
This means that a court would look at an agreement as an attempt and intent to parent a child together instead of initiating a lawsuit. The more specific you can be, the better. If you and your partner can include language regarding rights, duties, child support, plans for adoption, etc., a court is likely to be more willing to honor a parenting agreement like this.
Finally, you may have already found that you cannot access their medical records or even consent to medical care because you are not the legally recognized parent to a child. As the legally recognized parent to your child, your partner can authorize you to make medical decisions for your child. If your parent is unavailable to give consent for emergency medical care, you must have the authorization from them to direct the medical care for your child. Keeping a copy of this authorization handy is an excellent idea for future reference.
Seek assistance when you have questions about how to proceed
If you find yourself in an LGBT relationship and need to assert your parental rights and responsibilities to a child, the last thing you should do is do nothing.
The second to last thing you should do is proceed into a family law case without knowing the law, the legal system, and what outcomes you are likely to encounter. Hiring an experienced family law attorney can eliminate any concerns you may have and significantly improve your chances of achieving whatever goals you have set out for yourself.
Questions about your rights as an LGBT parent? Contact the Law Office of Bryan Fagan, PLLC
The attorneys and staff of the Law Office of Bryan Fagan, PLLC, take great pride in providing the best legal services possible to our clients.
If you find yourself asking questions about the subject matter contained in today's blog post or any area of Texas family law, please do not hesitate to contact our office today. We offer free of charge consultations to answer your questions and help you plan for a potential case.