A temporary or emergency child custody order may also be appropriate when there is already a child custody order is in place if the child faces a new threat. Say that the child custody order grants custody to parent A. Ordinarily parent B could not do anything that violates the terms of that order, but perhaps parent A has been arrested or has begun abusing alcohol or drugs. Parent B should seek an emergency child custody order before taking the child, as the without the order, parent B would technically be engaged in parental kidnapping. Courts are able to respond quickly to these types of dangers. A set of uniform laws and a federal law ensure that, no matter what state you find yourself in, a court will be able protect your child.

Have you received a temporary or emergency child custody order? How responsive was the court to your needs and your child’s safety?

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

1. The status of child custody
2. A parent’s motives in taking a child away from the other parent

Child custody status

Texas law criminalizes anyone (including a parent) who takes a child knowing that he or she is violating a child custody order. If you are the parent with custody over your child, the child’s other parent cannot do anything that violates the terms of your custody order. Also a parent may not move a child out of the judicial district area if he or she knows that a custody case is currently pending without seeking the permission of the court. Finally, Texas law makes it illegal for non-custodial parents to entice or persuade their children to leave the custodial parent or anyone else acting in that capacity.

For parents who would legitimately like to move, they have to petition the court with jurisdiction over the child custody case. This petition gives the non-custodial parent a chance to oppose the move. While the petition is pending, an act of the non-custodial parent to take the child away to avoid the move would be parental kidnapping.

The motives of a parent taking a child

If no child custody order is in place, the law generally assumes that both parents have equal rights to care for and spend time with their children. Brief trips and vacations with the child – even out of state – can be lawful assuming that the parent taking the child did so in good faith. Parents may not, however, take a child to hide him or her from the other parent or to terrorize the other parent. Many states, including Texas, criminalize this type of intent where one parent maliciously uses the child against the other parent.

Have you been involved in a parental kidnapping case? How were the courts able to help secure the return of your child?

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

Depending on your family situation, the path to adoption may not be straightforward. Here are several circumstances that can make it more difficult for non-biological parents to adopt a child:

• Grandparents who seek to adopt after the death of a child’s parents – they can make their case to the court that the child’s best interests are with them, but the court may prefer to grant an adoption to a younger relative like the deceased’s brothers or sisters before considering grandparents.
• Same-sex couples who would like to adopt a child jointly – more than likely, only one of the partners will be able to adopt a child, as same-sex couple joint adoption is a murky area of the law in most states, including Texas. Because such couples cannot marry in Texas, they cannot technically adopt together, but nothing prevents an individual partner from adopting a child on his or her own and then raising the child with a partner.
• Adoption where paternity is not acknowledged – adoption requires that the biological parents of a child relinquish their parental rights. If a child’s father does not acknowledge paternity, before an adoption can occur, an attorney has to take steps to formally end the rights of the birthfather so that the adoption can proceed.

Are you a non-biological parent who recently adopted? What advice would you share with others hoping to do the same?

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

Step-parents are in a similar situation to that of grandparents, a topic we discussed in Monday’s post. In most situations, step-parents do not factor into a child custody determination, which will involve only the child’s biological parents and the child’s best interests. If there is a danger to the child or if the child’s biological parents are deemed unfit, however, other parties like step-parents and relatives may be able to convince a Texas family law court that their household would be in the best interests of the child.

Do step-parents have to pay child support?

Step-parents usually do not have to pay child support, as Texas law requires only biological parents to do so. However, there are situations where a step-parent does have to pay child support. If the step-parent formally adopted the child, then he or she is obligated to pay child support. In order for a step-parent to adopt a step-child in Texas, that child’s non-custodial, biological parent must give up his or her parental rights. Also, a divorce settlement can specify that a step-parent agreed to provide child support.

Aside from these special situations, step-parents do not pay child support for their step-children, but, outside of Texas, this is not always the case. For instance, some states require step-parents who share a household with a minor child to provide support in the event that support from the child’s biological parents is not enough. As such, we always advise that you consult with an expert divorce attorney regarding child custody and child support.

Are you a step-parent who has sought child custody of a step-child following a divorce? How did you argue your case?

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

Grandparents come into play in a child custody case when a judge finds that neither biological parent would provide an ideal home environment for a child. Situations that give rise to such a finding include the following:

• Child faces neglect or abuse
• The biological parents would be unfit due, for example, to substance abuse problems,  criminal activity or domestic abuse
• Both parents have passed away or are in prison

If a child’s grandparents have filled a void in the child’s life due to one of the problems outlined above, grandparents are more likely to persuade a court to grant them custody or visitation rights. Other blood relatives like the parents’ brothers or sisters may argue for custody, so grandparents will have to put forth their best arguments as to why living with them is in the child’s best interests.

In the absence of one these extenuating circumstances, grandparents will unfortunately not likely play a role concerning their grandchild’s custody determination. Grandparents may try to get both parents to agree to include the grandparents in any court order, but the parents are under no obligation to do so. Finally, if another person or couple adopts the child, grandparents will also ordinarily have no custody or visitation rights.

Are you a grandparent who successfully won child custody or visitation rights for your grandchild? What factors were important in your success?

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

Unfortunately, it is often an uphill battle for second parents in same-sex couples to fight to win child custody rights. That is not to say that is impossible – a recent case from a Dallas court recognized the rights of a second parent to sue for child custody. The woman eventually dropped her case, though, after four years of trying to obtain physical and legal custody, but the recognition that she has standing, as a non-legal and non-biological parent, to sue for custody is a big step forward.

An effective, but by no means certain, method of protecting a second parent’s rights is through adoption of the child, a topic we discussed on Wednesday. Texas courts have not specifically ruled this out, and a second parent has formally adopted a child in Texas. The second parent would ideally formally adopt the child while the two parents were still a couple. If the second parent does not and the couple splits, he or she needs to act quickly, as Texas does not provide much time for the second parent to ask for child custody or visitation rights.

Have you raised a child in a same-sex relationship but then later broke up? How did you ensure your rights to continue seeing your child?

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

Last summer, a Houston judge made national headlines for his child custody ruling regarding a gay parent. The man had divorced from his wife 2004; the two had had three children together. He married his male partner in Connecticut in 2010, and then returned to the Dallas area to fight the original child custody ruling. The jury found that his wife should maintain custody of the three children, but that his visitations would continue as normal. The judge in the case tacked on an additional order, which was what made the headlines.

In the absence of any evidence of abuse or danger, the judge ruled that the man could not leave his children alone with any male to whom the children were not related (thereby ruling out the man’s partner). As of last update in the fall, the man is appealing the judge’s condition.

Thus, like many areas of same-sex family law, the rights of gay parents following divorce is unclear in Texas and is subject to change in the coming years. This at least provides gay parents the opportunity to put their best foot forward in arguing for their rights. They also have an opportunity to impact the law for all gay parents and same-sex couples in Texas.

Have you been involved in a child custody dispute similar to this? How did argue your case?

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

This is the case in Texas. A single homosexual parent is able to adopt a child, but the law is less clear regarding a same-sex couple jointly adopting a child. It is neither explicitly outlawed nor permitted. A Texas appellate court permitted a same-sex couple to adopt a child, but the court reached its decision on technical grounds (the couple later split, and the one partner was too late in trying to dismiss the adoption as invalid). The appellate court did note, though, that the joint adoption was not inherently against the law.

A similar legal development occurred regarding second-parent adoption, adoption where a partner formally adopts the child of his or her partner. The case involved two women who split up after eight years together. One of the women had had a child four years into the relationship. When the two split, the non-biological mother formally adopted the child. The court ruled in favor of the non-biological mother, as the biological mother had been too late in challenging the adoption. Consequently, it is not certain in Texas whether same-sex couples are able to adopt children jointly, or whether one partner may perform a second-parent adoption. If a same-sex couple splits up, it can be difficult to determine child custody given the uncertain status of the law.

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

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

The idea behind palimony is that unwed couples face many of the difficulties that married couples do if they split after having been together for a long time. Financial support immediately after a break up can help a spouse who may have been out of the work place or raising children for years. Without palimony, the partner who had been earning less may find him- or herself in a difficult situation right after the split. Palimony can help mitigate the damages, and same-sex couples can take advantage of the benefits of palimony agreements.

Palimony agreements are a type of contract in which one side agrees to provide financial support to the other in the event that they break up. Contracts require consideration (that is, each side must provide or give up something to the other, otherwise it is just a one-sided agreement); consideration for palimony agreements often comes from the other partner’s agreeing to be a homemaker or to stay at home and raise children. Because that partner agreed to maintain family life, he or she has to make sacrifices, often being forced to give up a career. Couples can recognize this sacrifice in a palimony agreement by agreeing that one partner should provide financial support to the other if the two later split.

Palimony agreements are often part of broader cohabitation agreements, which function as prenups for unwed couples. In fact, one of the more important cases for recognizing cohabitation agreements of same-sex couples comes from Texas. It is 1982’s Small v. Harper case, which involved two women who lived together for over a decade while splitting household chores, combining their money and saving towards retirement together.

Have you considered using a cohabitation or palimony agreement?

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

Same-Sex Marriage in Texas

Texans passed a state constitutional amendment in November of 2005 that defines a marriage as a union between a man and a woman. Same-sex couples may not, consequently, marry in Texas. A 2011 poll from the University of Texas and The Texas Tribune, however, found that a majority of Texans now support either marriage or civil unions for same-sex couples.

Same-Sex Divorce in Texas

Same-sex divorce is currently in a grey area in Texas. Same-sex couples have traditionally been unable to divorce in Texas even if they were properly married in another state that recognizes same-sex marriages. Two cases are currently pending before the Texas Supreme Court that, come this spring, will decide whether same-sex couples can divorce in Texas. The cases pit two couples to whom lower courts granted favorable rulings against Attorney General Greg Abbott.

Have you been involved in a same-sex marriage or divorce case? What wisdom can you share with other couples going through these legal difficulties?

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