In an era where lesbian, gay and transgender persons 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 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 having been 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.
Unique circumstances and legal issues face LGBT families and parents
Parents of children that are LGBT (Lesbian, Gay, Bisexual or Transgender) face some unique challenges within the legal system when it comes to courts honoring their right to custody and visitation of their children as well as in relation to establishing a legal relationship with their children first and foremost.
If you were ever in an opposite-sex marriage and filed for divorce based on your discovering that you were in fact LGBT. In the ensuing custody case, your spouse may have argued that because you are LGBT that is a factor that should be used against you when determining conservatorship.
This is a dangerous argument to make because your spouse is effectively calling into question your character and parenting abilities because you have discovered that you are LGBT. As a result, you must counteract this sort of opinion evidence with evidence of your own.
On the other hand, you may be involved in a same-sex relationship that has seen itself end up in a separation. Now you and your child’s other parent are engaged in a legal battle over custody of your child. If only you or your child’s other parent are an actual “legal” parent of your child then you may find yourself in a unique position regarding your rights to your child. Heterosexual relationships do not have this sort of wrinkle in most cases.
If you find yourself in this sort of position then you need to know that there are steps that you can take in order to protect your legal relationship with your child. When only your spouse has adopted a child, some courts in Texas actually allow you to engage in a “second” adoption. This places you in the role of a second legally recognized parent of your child. Usually, you see this when your spouse is the parent who actually gave birth to the child and is, therefore, a legal parent at birth.
When a legal parent who is LGBT seeks Custody/Visitation rights to a child
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.
It is presumed that absent sufficient evidence to the contrary it is in the best interests of every child in Texas to have a relationship with both of their parents. This means that a judge cannot deny you these legal rights to your child simply because he or she does not approve of your lifestyle or sexual preferences.
When negotiating with your child’s other parent it is important that you know it is not necessary for you to agree to overreaching restrictions on your behavior in order to be able 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 to bar a significant other of yours for being present during visitation periods. It does not matter whether or not you think that you will ever actually be in a relationship. These sort of restrictions are overbearing and improper. Your sexual orientation does not have an effect on your ability to be a good parent.
A walk through Texas case-law to illustrate these points
I’d like to take some time to walk you through three Texas appellate court decisions that are relevant to this discussion of parental and conservatorship rights.
A case from 1985, In the Interest of McElheney, a mother and father appealed the termination of their parental rights. The argument from the mother was that the lower court had allowed testimony about her sexual orientation to negatively impact her ability to retain parental rights over her son. The appellate court agreed, noting that sexual orientation alone is insufficient grounds to terminate parental rights.
In 2003 a legal decision out of Ft. Worth, Z.B.P. v. J.N.P. was centered around a divorce decree granting the mother and father joint custody of their child along with a geographic restriction on where the child could reside. The agreement was that the child shall not reside with the mother and a same-sex partner outside of a certain county. When the mother did move outside the county with a same-sex partner, she did so only after getting the permission of the father to do so on a temporary basis.
When the movement began to look more permanent than temporary, the father filed a motion to become the primary conservator of the child. The trial court ruled (and the appellate court upheld) that the father had grounds to do so because the child’s long commute was not in the best interests of the child. Getting back to a point we made earlier in this blog post, you should not agree to not live with a member of the same sex as a court would not order this unless it was shown that doing so would be harmful to the child.
Finally, in Jenkins v. Jenkins, a gay father was granted visitation rights in a child custody case. The mother won sole conservator rights while the father was granted only limited visitation rights. The trial court eventually expanded the visitation rights of the father despite no evidence that doing so was in the best interests of the child.
Reading through the facts of this last case, there are several that are unique. First of all, the child, in this case, was very young and an expanded summer visitation period may not make sense or a child of that age. Furthermore, the father had exposed the child to a number of harmful situations around the home that had put their safety in jeopardy. The court even called in an expert witness who offered testimony about how the father had failed to protect the child from harm’s way on repeated occasions.
LGBT non-parents who want custody/visitation rights
If you are the non-legally recognized parent of a child who is seeking visitation and/or custody rights to a child you must show a court that you have had actual care, control and possession of this 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 actually have lived with your child during this time period but that you must have had an actual role in parenting the child.
The standard that you as a non-legal parent must prove to win custody rights is the same as any parent in your position. That being the naming of your child’s legal parent as his or her 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 are able to in order to meet the time requirements stated above.
Protecting Parental Relationships- Tomorrow’s blog post topic
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 with you the services that we can offer to you as a client of ours.