When Texas recognized same-sex marriage, it also recognized same-sex divorce. In one sense, the genders of the individuals involved in a divorce don’t matter in the eyes of the law, the fact is that people going through a same-sex divorce can face a number of legal issues that are not usually found in heterosexual divorces, especially if the couple has one or more children. Novel legal issues have arisen in the context of same-sex divorces involving children that have not been completely resolved by either the courts or the legislature. This post will consider a few of these unusual situations and possible solutions.
More than two legal parents
Texas courts have never accepted the legal conclusion that more than two individuals can be parents of the same child. However, the advent of same-sex marriage has given rise to the phenomenon of a third (or more) person wishing to assert parental rights over a child already having two same-sex parents. Other courts have recognized third persons as having parental rights in a child who has two parents. In such cases, the advice of an experienced family lawyer is a virtual necessity to a peaceful solution.
Child custody disputes
Texas law gives judges the power to decide child custody disputes on the basis of how the judge perceives the child’s “best interests.” If a same-sex couple have both obtained legal custody of a child, they are both parents of the child and both should be granted joint legal custody. If either spouse chooses to dispute this result, one or both former spouses may file a petition seeking a declaration that one of the two spouses is the child’s rightful legal parent. In order to prevail in such a dispute, the non-legal parent must prove that giving custody to the non-legal spouse would “would significantly impair the child’s physical health or emotional development.” Some judges who are not fully accepting of modern notions of sexuality and gender identity may find that having a parent who has identified as transgender may not serve the child’s best interests.
In a notable Texas case, the trial judge awarded custody based on his finding that a woman who had changed her gender to female led a “dangerous life-style.” The judge granted full custody to the spouse who was not trans-gender.
As might be inferred from this post, child custody issues in a same sex divorce can quickly lead to numerous legal complications. The advice of an experienced family experienced or divorce lawyer may be essential to achieving a favorable outcome.