Family Law: Same Sex Custody Case on-Point

November 4, 2011

Same sex custody is a hot topic across the nation, but today’s article focuses on the case on-point from Texas – In the Interest of M.K.S.-V., A Child – by Dallas Family Law Attorney Michelle O’Neil.  This case addresses the issue of whether a person who feels like a parent and has substantial involvement, though is not legally a parent, has the right to go to the court house and ask to file a lawsuit and seek orders regarding the child.

In the Texas Appellate Court, there have been 20 cases on this issue in just two years.  It is an area of dissent in the Texas courts.  Some courts say that the Troxel case mentioned in last week’s article precludes the non-parent from having a relationship.  Other cases reject that, and say if the non-parent has had a substantial relationship, then it should be continued.  The opinions vary depending on jurisdiction. 

Michelle believes there should be a standard based on what the child needs and what is in their heart.  In all other cases in Texas, the child is at the center.  However, in these cases, it doesn’t seem like this is what is considered.  Michelle points out that “While the parent’s constitutional rights to make decisions for a child needs to be respected and held at a very high standard, at some point if the parent isn’t making a good decision, then the court or someone else should have the right to challenge that decision.”

Custody Tip from Michelle:

When one parent is biological and the other is not, it is crucial to create legal recognition of both parents’ rights. The best way to accomplish this is by having the non-biological parent officially adopt the child. Then, in the event of dissolution of the relationship, both parents will have access to their children the same way other divorced parents do. Parental agreement will be required for the adoption.

Also, check out Hot Topic for Family Law Attorneys: Same Sex Custody

More about gay rights from Thomson Reuters News & Insight.