Hot Topic for Family Law Attorneys: Same Sex Custody

October 25, 2011

Within the area of family law, there is a growing topic of same sex custody arrangements.  Michelle May O’Neil highlights the general topic and how it pertains to the Texas courts. 

If her name sounds familiar, she is a highly recognized Dallas Family Lawyer, and has other blog articles covering her small law lifestyle and family law mobile apps.


Currently in Texas there are hot button issues around custody cases for same sex couples – and some heterosexual cases where a “parent” is not the legal parent.  Couples are separating with unique parental situations leaving their dependent’s custody arrangement in question.  Often times, there is one parent (biological or adopted) and another person who feels they are a parent, though not legally a parent.  This would include a parent and stepparent, or a parent and a boyfriend or girlfriend. 

There is extensive litigation going on to determine what legal rights a person has who is not the legal parent, but might even be called “mom” or “dad” to the child.  Most of the litigation is with same sex custody cases because there are so few laws in Texas addressing same sex relationships.  What’s happening is same sex couples want to have a child.  Typically, one person adopts or has the child while in the relationship, and they both agree on the arrangement.  Then, for whatever reason there is no official adoption with the second person, so they never have the legal relationship with the child.  What happens with the child when the couple’s relationship dissolves?  And, what about the parent who doesn’t have a legal relationship with the child?  This is where the litigation comes in.


This type of case is most similar to the Supreme Court case called Troxel which surfaced just a few years ago.  The case compared grandparent rights to that of a legal parent’s, which are above and beyond all the rights of a non-legal parent.  Basically, Troxel said that parents have the rights to make decisions.  In this case, the dad had died and the parental grandparents wanted rights to the child.  The court said that the decisions of the parent (in this case the remaining mother) were above the opinion of any others. She has a constitutional right to make those decisions on behalf of her son.


When you transfer the ruling of the Troxel case into the realm of same sex custody, then the “parent” who did not legally adopt does not get to make the decisions for the child when the relationship breaks up.  Litigation arises between the couple, but due to the ruling in Troxel and how it trickles down to apply to Texas laws, the people who believe they are like parents are having a hard time maintaining those relationships. The courts have not come up with any method of sanctioning those relationships, after the legal parent’s decision.

Check back next week for more details around the standard case in Texas for filing suits on behalf of nonparents and their rights with regard to non-biological children (Court of Appeals of Texas). 

More information on Michelle can be found on her firm’s site: