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Texas Divorce and Prenuptial Agreement

4550 Post Oak Place, Suite 201 • Houston, Texas 77027-3139

Phone: 713-877-8800 • Fax: 713-877-1229

Same Sex Couples and Raising Children in Texas

This week we have discussed how same sex couples can use cohabitation agreements and other legal tools to receive many of the same legal protections as married couples in Texas. But there is another family law issue that is also more difficult for same sex couples – what rights do they have when they want to expand their family and raise children?

Same sex couples and children in Texas

Like all aspects of same sex family law, same sex adoption is highly state dependent, so the laws are likely to be different depending on where you live. In Texas, adoption is the typical way that a same sex couple raises a child, but there are a couple of ways to go about this.

In female same sex relationships, one of the partners may decide to give birth to a child. As the birth mother, she has all of the customary legal rights that accompany motherhood. The birth mother’s partner, though, ordinarily has no child custody rights concerning the child. This can be devastating if the couple later splits up, and the partner suddenly finds herself completely cut off from a child she had been raising. The partner’s only option is to adopt the child, and a recent Texas appellate court decision did permit the partner of a child’s biological mother to become an adoptive parent.

In the case of a same sex couple wishing to adopt child to whom neither partner gave birth, the typical Texas adoption rules apply. Married couples have to apply jointly to adopt a child. Because same sex couples may not marry in Texas, same sex partners, for now at least, approach adoption individually. One individual partner would ordinarily have no problem adopting a child.

What is less clear as to what a Texas court will permit, however, is a joint petition of a same sex couple to adopt, or a second parent adoption petition from a same sex partner after his or her partner had already adopted the child. Such petitions have worked in the past, but the law is not settled.

Have you been involved in a same sex adoption? What hurdles did you face?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

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