Trends in Family Law: Custody problems in same-sex separations

November 16, 2011

Family Law Theme Month(Editor’s note: Because of the shifting terrain of family law on the national level, we’ll be looking at different trends in the field throughout the month of November)

For the first post on interstate same-sex adoption, click here.

For the second post on state constitutional “personhood” amendment, click here.

Earlier this month, we talked about problems encountered by same-sex couples in adopting, particularly in regards to interstate adoption.

What happens, though, when a same-sex couple, who also happen to have a child, separate?

In circumstances where both of the same-sex partners are legally parents of the child or children, the separation generally isn’t treated any differently by the legal process than a heterosexual (and non-marital) parental separation.

As many family law attorneys already know, a parent does not anticipate a separation with his or her partner, and thus often does not take the legal steps to ensure his or her legal parental rights.

An earlier post by Kati Katzenmeyer illustrates such a situation.

The post discusses the recent Texas Court of Appeals case In re M.K.S.-V., which involved a lesbian couple – now separated – disputing the custody of the child conceived during their relationship.

Well, I guess “disputing” isn’t the most accurate term here, since it was actually one of the partners suing for joint conservatorship of the child.

The other partner had conceived the child via artificial insemination, and as such was automatically recognized as the child’s legal parent.

The other partner had never legally adopted the child, and thus had no actual parental rights under the law.

And although there was an informal possession agreement (analogous to a custody agreement) in place, it was never formalized in court.

Lastly, the biological mother refused to consent to the child’s adoption by her ex-partner, a requisite under Texas law.

Dallas family law attorney Michelle O’Neil, who discusses the law on the issue throughout this and an earlier post on the same topic, states that the law is still unsettled on this point and that results may vary between different jurisdictions.

This is quite true.

But just as true is the fact that it’s easier for everyone if a court battle could be avoided altogether.

To this end, O’Neil gives a great tip: before separation occurs (meaning, while the relationship is still healthy or at least intact), the non-biological parent should adopt the child.

This process is called “second-parent adoption,” and it allows an unmarried cohabitating partner of a child’s legal parent to adopt the child without terminating the legal parent’s rights (generally distinguishable from stepparent adoption by the fact the partners are unmarried).

In situations where there is only one recognized legal parent, this is a great route to take.

When both parents are in the picture (i.e. the child or children are from a previous heterosexual marriage), second-parent adoption is very difficult in many circumstances, and sometimes impossible (for reasons too numerous to get into here).

Unfortunately, second-parent adoption is not available in all jurisdictions (three states expressly disallow the practice, and four more states effectively bar it by operation of their adoption laws).

In those circumstances, a parenting plan or custody agreement is, for practical purposes, the only alternative.

These agreements, which need to be formalized by a court, grant many of the custody rights a legal parent enjoys, but still do not actually confer the legal status of “parent,” and in many situations, this can create problems, large and small.

Obviously, this area of law is a minefield, and it is such in large part because same-sex couples cannot legally get married in most jurisdictions.

This is one more reason, perhaps, why it’s understandable that same-sex couples so strongly desire the right to a lawful marriage.