Same-sex divorces that involve children often bring up questions that couples didn’t anticipate at the start of their relationship. While the law intends to treat all marriages equally, the path to parenthood for many same-sex couples introduces layers of complexity.
In the video, Atty. Tina Campbell and Atty. McKenzie Coe of Turner-Monahan PLLC discuss the unique challenges same-sex couples face during divorce, highlighting the importance of gestational agreements, the legal questions surrounding conception, and the steps needed to protect parental rights when children are involved. All case evaluations are based on Texas Family Law. This content is for educational purposes only.
Understanding Divorce in Same-Sex Marriages: Why Gestational Agreements Matter
At Turner Monahan, we know that every divorce is unique. For same-sex couples, especially those with children, the process can involve specific legal considerations that are different from traditional divorces. One of the most important of these is the role of gestational agreements.
What is a Gestational Agreement?
A gestational agreement outlines how a child was conceived, whether through IVF, surrogacy, or donor assistance, and who holds parental rights. While these agreements are becoming more common in opposite-sex marriages due to the rise in IVF, they are often central in same-sex marriages where biological ties are not always shared by both parents.
If you’re going through a divorce and you have children involved, it’s essential to have a copy of your gestational agreement. Don’t rely on your doctor to keep this document. It should be part of your legal records because it plays a major role in determining parental rights during the divorce process.
Important but Sensitive Questions
We understand that it can feel personal or even invasive when questions are asked about the child’s conception. But these questions are necessary. We may need to ask where and how the conception happened, who was involved, and whether any adoption took place.
These details help us understand:
- Whether a biological parent needs to be part of the case
- If an adoption occurred or is needed
- Who appears on the birth certificate
- Whether the rights of a biological parent or sperm donor need to be terminated
All of this affects how the court determines parental rights and responsibilities. In traditional divorces, many of these questions don’t come up in the same way. But in same-sex divorces, they are critical to protecting everyone involved, especially the children.
Parental Rights and Legal Assumptions
There’s a legal assumption that if a child is conceived during a marriage, they are the child of both spouses. This assumption helps reduce paperwork and complications. However, with same-sex marriages, conception usually requires medical assistance or a third-party donor. That means we must clearly define each parent’s role.
In some cases, such as when a child is conceived between a man and a woman during the marriage of a same-sex couple, things can get complicated. Even though the couple is married, the law may require additional legal steps to confirm parental rights. This could involve:
- Bringing in the biological father or donor
- Terminating their parental rights if necessary
- Allowing the non-biological parent to adopt the child
Taking these steps helps avoid legal issues later and ensures that both parents have equal rights and responsibilities.
Why This Matters for Your Divorce
Understanding these unique legal aspects is not just about paperwork. It’s about protecting your relationship with your child and making sure your parental rights are clear and secure.
At Turner Monahan, we ask the right questions, not to make things uncomfortable, but to ensure the best outcome for you and your family. We are committed to making sure that both parents’ rights are respected and that children remain at the center of every decision.
The Impact of Intent to Parent
In family law, especially in cases involving assisted reproduction, intent to parent can play a major role in determining parental rights. Courts may look at who intended to raise the child, not just who is biologically related. This can help protect non-biological parents in same-sex relationships.
For example, if both partners agreed to raise the child together and took active parenting roles, that intent may help establish legal standing, even if the parent isn’t listed on the birth certificate.
Medical Records and Consent Forms
Another overlooked but important area is access to medical records and decision-making rights. In cases where only one parent is the legal or biological guardian, the other may be limited in their ability to make medical or educational decisions for the child.
During a divorce, it’s important to bring up whether both parents were consistently involved in signing school papers, medical consent forms, or insurance coverage. These details may help demonstrate the shared role both parents played.
What Does the Texas Family Code Say?
Texas law aims to uphold the rights of parents, but doesn’t always spell things out for non-traditional family structures. Several parts of the Texas Family Code can affect same-sex divorces with children:
Section 160.204: This statute defines the presumption of parentage in marriages. A spouse is presumed to be a parent if the child is born during the marriage, but this presumption may not apply cleanly in same-sex marriages without additional steps like adoption or donor agreements.
Section 160.703: This addresses gestational agreements. It outlines the legal framework for intended parents using a gestational carrier, which becomes crucial when establishing legal parentage in same-sex families.
Section 153.002: This section emphasizes the best interests of the child in custody decisions. Regardless of parentage complications, the court’s focus will be on what benefits the child most. Demonstrating emotional bonds, shared caregiving, and consistent parenting can influence these decisions.
Section 102.003: This allows a non-biological individual to seek custody if they’ve had actual care, control, and possession of the child for six months or more. This can be especially important for non-adoptive same-sex parents seeking legal standing.
Understanding how these statutes apply to your situation can help prevent surprises during the divorce process.
Hire An Experienced Fort Worth, Texas, Divorce Attorney
Divorce is never easy, especially when children and unique parenting circumstances are involved. Same-sex couples must take additional steps to ensure their parental rights are protected under Texas law.
If you’re in this situation, consult with a family law attorney who understands both the emotional and legal layers involved. 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 regarding your case. There is tons of information on divorce and answers to unique questions like “What Is a No-Fault Divorce?”
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.
