Establishing legal custody of a non-biological child can be a complicated process for LGBTQ families for multiple reasons. One of these reasons includes the fact that LGBTQ people are statistically less likely to be legally married, which increases the chance that these parents will need to pursue other legal proceedings to establish parental rights over their children. Even for married LGBTQ couples, having both parents’ names on the child’s birth certificate may not be enough to protect both parents’ legal rights to the child. Also, LGBTQ parents are adopting children at a much higher rate than opposite-sex couples, which brings its own set of legal processes (we discuss this in more detail in our blog about LGBTQ Adoption).

The laws dictating child custody include many factors and are complicated. Some of the many major factors considered when the court determines who is a child’s legal parent can include, but aren’t limited to: who is the biological parent, was the child adopted by the non-biological parent, and how the child was conceived.

LGBTQ Child Custody Methods

The most common methods for LGBTQ families to legally establish custody of a child include:

Non-Relative Adoption

The general process for adopting a child that is not biologically related to either partner is the same for LGBTQ people as it is for everyone else. If you’re legally married, you must co-adopt with your spouse. An unmarried LGBTQ adult can also adopt.  While some Texas counties have allowed unmarried couples to jointly adopt a child, they may be required to each adopt the child separately with a 6-month wait in between.

Second Parent or Confirmatory Adoption

If one parent in an LGBTQ couple is the biological parent of the child and the other parent is not, then it is good idea for the couple to go through the process of a second parent adoption, or “confirmatory adoption”. While Texas law does not specifically authorize second parent adoption, some judges will allow it. 

Parenting Orders

A Suit Affecting the Parent-Child Relationship (SAPCR) is a type of parenting order and is especially useful for non-biological parents who have not previously established parental rights through adoption.

child custody in LGBT family law

However, SAPCR cases can be complicated. Under Texas law, there are usually strict time limits for filing and only people meeting specific requirements may qualify for a parenting order. A person can seek custody rights through a parenting order in Texas if they meet multiple requirements, which at the very least include: the person acted as a caregiver to the child(ren) for at least six months (or since birth) and Texas was the child’s home state.

LGBTQ Custody Concerns in the Case of Divorce

When a same-sex couple with children decides to divorce, the question of legal parentage often becomes an issue. If only one of the partners has a biological connection with the children, and the parents cannot come to a custody agreement on their own, the court will intervene to determine custody. This process will usually involve research into both parents’ home environments, financial status, and backgrounds, then the judge will decide who should get custody based on what the judge thinks will be in the child(ren)’s “best interest.”

When there is a custody dispute between same-sex parents who both have legally established custody rights, it is most common that both parents be given joint custody.  However, if one of the partners has not previously established legal parentage to the children, it is much more difficult to get custody/visitation granted unless the non-legal parent can prove that giving the legal parent sole custody “would significantly impair the child’s physical health or emotional development.”  

It is important for LGBTQ parents to establish legal custody early on through the methods mentioned above in order to protect their future parental rights. It is much more difficult for a parent to gain more rights over a child or to terminate the rights of the other parent when both are established legal parents.

Choose a Lawyer Experienced with LGBTQ Legal Issues

Kelly J. Capps, Family Law attorney, Texas family lawAt Capps Law Firm, PLLC, we are committed to staying up to date on the ever-evolving issues that members of the LGBTQ community face in Texas. Kelly J. Capps is a member of the Austin LGBT Chamber of Commerce and an active member in the community supporting same-sex couples.

To learn about the most recent legal developments in LGBTQ family law and what they mean for you, request a consultation today. 


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