When one parent is biologically related to the child and the other is not, it can raise a lot of questions during a divorce. Parents often wonder if biology changes how custody is handled or if one side automatically has more rights. These questions are especially important in families built through adoption, surrogacy, or same-sex partnerships.
In the video, Atty. Tina Campbell and Atty. McKenzie Coe of Turner-Monahan PLLC explain how child custody and adoption issues for LGBTQ+ families can involve extra legal steps to protect non-biological parents during divorce or separation. All case evaluations are based on Texas Family Law. This content is for educational purposes only.
Fewer Legal Steps, Not Higher Ground
At Turner Monahan, we’re often asked whether a biological parent has the upper hand in a divorce when only one parent is biologically related to the child. The answer is not about one parent being “better” or having a stronger legal position, but rather about how many legal steps each parent must take.
A biological parent usually has fewer steps. They are typically listed on the birth certificate and do not need to adopt the child, terminate another parent’s rights, or prove parenthood. That said, a judge is not going to automatically consider the biological parent more of a parent than the other. Both parents can still be seen as equal in the eyes of the court once the legal steps are completed for the non-biological parent.
Equal Legal Standing Matters
It’s not about being more or less of a parent. It’s about ensuring that both parents have equal legal rights. We’ve worked on cases where the non-biological parent wasn’t on the birth certificate but had been the child’s primary caregiver for their entire life. That parent was granted primary custody until the legal steps could be completed. The court considered testimony, reviewed the child’s history, and made a decision based on what was least disruptive to the child’s life.
In these situations, courts focus on what is in the best interest of the child. If everything has been stable and consistent, judges usually want to keep it that way. Even if the non-biological parent is still in the process of legally establishing rights, their role in the child’s life can carry a lot of weight.
When Other Parties Are Involved
Things can get more complicated when another person steps into the situation. For example, there may be a man who agrees to be listed as the father, even though he is not biologically related, just to help out a friend or to prevent another person from having parental rights.
In our experience, that type of situation can become very complex. It may involve a deeper look into case law and require more evidence to pursue something like a termination of rights. These cases often take longer and can cost more due to the added legal complications.
If this happens, the court will need to sort out each person’s role and whether any legal agreements or assumptions were made that affect custody or rights. These are difficult situations, and we always aim to help clients avoid unnecessary conflict and delays.
The Role of Intent and Past Caregiving
One key factor the court considers is the intent behind parenting and the actual caregiving history. A non-biological parent who has taken on full parenting responsibilities for years may be seen as having a strong bond with the child. Courts often value consistent caregiving more than biology alone. If that parent has made long-term decisions for the child, paid for education or healthcare, or has been emotionally involved, these facts will be brought up in court.
How Timing Affects Legal Recognition
The timing of legal action also plays a role. If a non-biological parent waits too long to legally establish their rights, it could affect the outcome of the case. It’s best to start this process as early as possible, ideally before separation or divorce. This ensures the parent has legal standing and avoids last-minute complications. Waiting until after conflict arises can make the process harder and delay court decisions about custody.
How Courts View the Child’s Attachment
Another layer the court considers is the child’s emotional attachment to each parent. Judges often listen to therapists or experts who may assess the child’s well-being and attachment patterns. If the child sees both individuals as parents, courts tend to avoid changes that might cause confusion or emotional harm. In other words, the relationship between the child and the parent matters just as much, if not more, than the biological connection.
What Does the Texas Family Code Say?
The Texas Family Code provides specific guidance on how parental rights and custody are determined in these situations:
Section 160.201: Establishment of Parent-Child Relationship
This section outlines how a legal parent-child relationship can be created, including through birth, acknowledgment, adoption, or court order. It reinforces that legal parenthood is not only about biology.
Section 153.002: Best Interest of the Child
This is the primary standard for all custody decisions. The court must consider what will serve the child’s physical and emotional needs best, not simply who is biologically related.
Section 160.204: Presumption of Paternity
A man is presumed to be the father if he is married to the mother at the time of the child’s birth or has lived with the child and represented himself as the parent. This can sometimes complicate cases where another person later tries to claim parental rights.
Section 102.003: Standing to File Suit
This section allows certain non-parents to file a suit affecting the parent-child relationship if they’ve had actual care, control, and possession of the child for at least six months. This opens the door for non-biological parents to pursue custody if they’ve been acting as a parent.
Hire An Experienced Fort Worth, Texas, Divorce Attorney
Parenting during a divorce can be complex when one parent isn’t biologically related to the child. Legal rights, caregiving history, and the child’s emotional well-being all play important roles. For the best results, consult with an experienced family law attorney who understands both your rights and the details of Texas law.
To make sure every step is handled properly, it is always best to consult with a family law attorney who understands LGBTQ+ issues and Texas law. Schedule a free, no-obligation consultation with Attorney Tyler Monahan to discuss the details.
Check our website for more information about our services. Plus, don’t forget to go through our blog to find out more about your case. There is tons of information on divorce and answers to unique questions like “How Do I Prepare for Court?”
FAQs Regarding Divorce
Divorce cases are unique, so you will have many questions. To save you time and hassle, here are some topics that revolve around the area. For more information, contact our firm, Turner-Monahan, PLLC.
Disclaimer
The commentary and opinions are for informational and educational purposes only and are not intended to provide legal advice. You should contact an attorney in your state for legal advice concerning any particular issue or problem. You can become a client and enter the attorney-client privilege only after hiring Turner-Monahan, PLLC, by signing a written retainer agreement.
