Many LGBTQ people who are divorcing have children. Though Texas recognizes same-sex marriages, it has not enacted specific laws that address the unique child custody issues encountered by some LGBTQ parents who are divorcing.
How does the state handle custody issues between divorcing LGBTQ parents?
How Texas courts handle LGBTQ custody when both parents are legally recognized
If both spouses are the biological or adoptive parents of the child, the court should treat the custody case as it would with two non-LGBTQ parents. In most cases, the judge names both parents joint-managing conservators who share the rights and responsibilities of parenting, unless this arrangement is not in the best interests of the child.
How Texas courts handle LGBTQ custody when only one parent is legally recognized
In cases where only one parent is the biological or adoptive parent of the child, the law does not clearly define how to treat custody in a divorce. Existing Texas law assumes that any child born during a marriage is the biological child of the husband, but the language of the law is gender-specific and does not address same-sex marriages or marriages involving non-cis gendered people. In some cases, this leads the court to treat the non-biological or adoptive parent as a step-parent who is not required to support the child or entitled to any custody rights after the marriage dissolves.
Because of the lack of clarity in Texas law, many LGBTQ parents choose to take steps to ensure both parents are legally recognized as parents through adoption or some other means.