Earning the right to marry at the Federal level was a major step forward for same-sex families. Suddenly, even the most resistant states got forced to acknowledge the legitimacy of same sex marriages and families. Couples who had been together for years, even decades, flocked to the alter or the justice of the peace in droves to publicly celebrate their unions.
After all the joy and happiness from this progress started to quiet down, some of the marriages in question began to falter. Little surprise there, as heterosexual couples have roughly a 50 percent divorce rate in the state of Texas. However, same sex couples with minor children have presented new situations to the courts for which there is little legal precedent at this time.
Custody issues can get complicated easily
In same sex couples with two women, one of the spouses may have chosen to bear the marital children. In same sex couples with two men, the semen of one of the partners could get used to fertilize a donor egg. In either situation, the result is a child who has a biological connection with only one parent. Ideally, the non-biological parent would move to adopt the child immediately after birth, but that doesn't always happen. Couples may be nervous about going to court, social stigma or the costs involved.
When it comes time to divorce, however, this can give the biological parents a stronger claim to full custody of the child and create an uphill struggle for the non-biological parent who wants custody and visitation rights. The same is true if one parent adopted the child prior to the marriage. The other spouse may not have legal ties to the child, but may still feel strong bonds of love and a desire to provide for and guide the child in question.
Common sense will likely prevail, but outcomes remain unclear for many
In cases where both parents adopted an unrelated child, the custody situation is much more straightforward. Both parents have rights to and a legal relationship with, the child. The courts will likely handle these cases exactly like heterosexual couples who have adopted prior to divorce. For those whose situations are more complex, careful approaches are necessary.
In a perfect world, divorcing same-sex couples would go through counseling and mediation to work out a positive custody and co-parenting arrangement that complies with Texas laws and works in the best interest of the child. Sadly, just like that doesn't always happen in heterosexual marriages, it won't always happen in same-sex marriages. There are some legal options available that can protect the rights of a non-biological parent in a same sex divorce. You should explore all of your options before you give up fighting for the child that you love.