Woman and child in a same-sex custody battle.

Common Issues in Same-Sex Custody Cases in Texas

Same-sex couples have been allowed to marry and divorce in the United States for some time now. However, despite the acceptance and legality of same-sex marriage in the United States, same-sex couples face unique challenges when seeking custody of a child following a divorce. This is because typically only one biological parent is involved in these types of cases. Since this is a relatively new area of the law, the law is still developing as to whether a non-biological parent who hasn’t formally adopted the child qualifies as a legal parent. Below is an overview of common issues in same-sex custody cases in Texas. 

Common Same-Sex Custody Issues


Standing in legal terms is the right to sue and have your position heard by the court. In custody cases, standing is a person’s ability to sue for custody is typically determined by Texas Family code section 102.003, though there are other code sections that may also confer standing. While a biological parent will have standing to sue for custody of a child under Texas Family Code 102.003(a)(1), a non-biological parent will have to qualify under another provision. Recent developments in Texas case law may support an argument for a non-biological parent to qualify for standing if they “have had actual care, custody, control and possession of the child for at least 6 months ending not more than 90 days” before commencing the suit. This could open the door for a non-biological parent to sue for custody of a child in the absence of an adoption, gestational, or other agreement with the other parent. 

Parental Presumption

Some of the Texas appellate courts have also approved the idea of extending the parental presumption available to heterosexual spouses to same-sex spouses. There is a presumption in Texas family law that a husband is the father of a child born to his wife during the marriage. This language clearly excludes same-sex couples which can cause issues for non-biological parents when they seek custody of the child in a divorce situation. While the courts have started to apply this presumption to non-biological parents in same-sex marriages, the code has not been updated. Thus, there is no guarantee that a same-sex parent will be afforded the benefit of this presumption in Texas. Therefore, it is recommended that non-biological parents in same-sex relationships consult with a Denton County child custody attorney to determine their custody options. 

Gestational Agreements

One of the options that non-biological parents have under Texas law is for each spouse in a same-sex marriage may enter into a gestational agreement to have a child through assisted reproduction. If both parents have entered into a gestational agreement that complies with the requirements of the Texas Family Code, that can establish both parents as intended parents, and both will have the right to request custody if the marriage later breaks down. However, child custody cases involving same-sex couples and gestational agreements can be complicated, so it is recommended that you contact a Denton County child custody attorney for guidance on this issue. 

Avoiding Child Custody Issues in Same-Sex Cases

When it comes to child custody matters, an ounce of prevention is worth a pound of cure. Below are two methods that partners in same-sex couples can use to avoid future custody challenges.

  • Adoption – The best way to solidify the legal relationship between a non-biological parent and his or her child is to go through the formal adoption process. And although it is easiest to accomplish this when the relationship between the biological parent and non-biological parent is good, it is certainly possible both during and after a divorce. 
  • Agreement Between SpousesOther than adoption, there are few legal options available for a stepparent who wishes to continue a relationship with his or her non-biological child following a divorce. If a same-sex couple parts ways on good terms, then an agreement between the parents to continue access is an obvious solution. Unfortunately, however, divorces are sometimes messy, and this can prevent a non-biological parent from maintaining a relationship with his or her child. It is best to have any agreements about parentage completed and set up at the time the couple decides to have a child, not when the relationship starts to break down.

Contact our Denton County Family Law Lawyer 

Same-sex custody cases in Texas are complicated. Therefore, if you are divorced or are going through a divorce and need assistance in maintaining your relationship with your child, please contact a Denton County child custody attorney as soon as possible for assistance. At Youngberg Law Firm, we understand the difficulties you are going through and will work to achieve a fair and just outcome on your behalf. Our experienced family law attorneys serve clients throughout Denton County, including Flower Mound, Highland Village, Little Elm and Denton. Therefore, if you need a family law attorney in Texas, please contact us today for a consultation.