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Child custody challenges in same-sex divorce

On Behalf of | Jun 2, 2023 | Family law, LGBTQ Family Law

There has been a growing tide of acceptance across the country for people of all sexual orientations. Many states now recognize the legality of same-sex marriage, adoption and other rights. However, many aspects of the law continue to be a cause for concern, including divorce and, particularly, child custody.

It might be challenging for divorced spouses to determine child custody in many Texas communities since same-sex parenthood is still not widely recognized. In most jurisdictions, courts will treat divorcing homosexual couples the same as heterosexual couples if both parties are legal parents of the child.

Generally, for the court to recognize either party as the child’s legal parents, they must satisfy the following requirements:

  • Both parties have jointly adopted the child
  • One party is the biological parent of the child, while the other party has adopted the child

However, things could grow messy if one partner is a parent by blood or law and the other is not. Unfortunately, the law does not automatically grant nonbiological parents the same rights as biological parents. If the other party has made no attempts to adopt, the court considers them a nonparent.

Before a nonparent can participate in a custody dispute, they must first establish that they have standing to do so or demonstrate that they had actual care, control and possession of the child. Because of how complex this area of the law can become, nonparents may want to seek legal counsel.

It can be extremely tiresome to deal with divorce, and child custody only adds a layer of difficulty. However, it is important to keep in mind that judges make decisions based on what is in the child’s best interests. That includes ensuring the child continues to have a relationship with both parents.