Establishing Parental Rights
There are specific, and often complicated, rules about who is considered a child’s legal parent. To be a legal parent highly depends on the specific circumstances of the people involved and can include: the marital status of a couple, who is the biological parent of the child, and how the child was conceived.
Even for cisgender, opposite-sex couples, establishing legal parenthood of a child can be a complicated process. In fact, being the biological parent of a child may not automatically make you one of the child’s legal parents.
a) Example 1: Wife (W) is legally married to Husband (H). They are separated but have not yet legally divorced. She has a Child (C) with another Man (M), and there is no question that M is the biological father. W is legally the mother of C, but H is legally C’s father. A wife’s husband is presumed to be the father of a child she has during their marriage, even if she has the child with someone else. Although this can be simple to fix, they still have to take additional legal steps if they want to establish that M is C’s legal father instead.
This can be more complicated for LGBTQ+ people for several reasons. For example, LGBTQ+ people are less likely to be married, making it more likely they’ll need other legal proceedings to establish parental rights over their children. Even for married LGBTQ+ couples, simply being married and having both parents’ names on a child’s birth certificate may not be enough to protect both parents’ legal rights to the child. Same-sex parents are also much more likely to be parenting adopted children than different-sex parents.
Separately, LGBTQ+ relationships can confuse judges and lawyers who aren’t familiar with them, and it can be difficult to apply laws to LGBTQ+ relationships that were written with cisgender, heterosexual people in mind. We’ll look at the following examples:
b) Example 2: Wife 1 (W1) is legally married to Wife 2 (W2). W1 carries and delivers their Child (C), conceived with sperm from a Donor (D). Out of W1, W2, and D, which of them will be C’s legal parents? What if W2 is a transgender woman?
c) Example 3: Husband 1 (H1) is legally married to Husband 2 (H2). They ask a surrogate (S) to carry their Child (C). Out of H1, H2, and S, which of them will be C’s legal parents?
d) Example 4: Girlfriend (G) is in a romantic relationship with Boyfriend (B), but they are not married. G adopts two kids on her own and is the kids’ only legal parent. However, B acts as their father for many years. Eventually, G and B separate and G later cuts B off from having any contact with the kids. Can B ask to be declared the kids’ legal father with equal rights as a co-parent? What if B is a transgender man?
Below is general information about some methods LGBTQ+ couples can use to establish legal rights over their children. This is not a substitute for the advice of an attorney regarding your specific circumstances. If you are considering establishing a family, or you already have children and haven’t consulted with an attorney regarding parental rights, you should consider contacting a family law attorney experienced in working with LGBTQ+ people.
Assisted Reproductive Technology
If a child is conceived through assisted reproductive technology, such as artificial insemination or gestational agreement, it may be possible for LGBTQ+ parents to take steps that ensure their legal rights as soon as the child is born. This can change depending on how the child is conceived. Returning to our examples from above:
Assisted Reproductive Technology - Example 2
Wife 1 (W1) is legally married to Wife 2 (W2). W1 carries and delivers their Child (C), conceived with sperm from a Donor (D). Out of W1, W2, and D, which of them will be C’s legal parents?
a) Scenario A: W1, W2, and D were friends. They made an informal agreement between themselves, and D provided his sperm to the couple so that W1 could inseminate herself at home.
Answer: As a benefit of marriage, W2 is presumed to be C’s second parent and can have her name on C’s birth certificate. However, D might still become C’s other legal parent, depending on whether he gave up any claim to parental rights at the time he donated his sperm.
Under Texas law, a “donor” does not have parental rights. But in order to be considered a donor, the person must give their sperm or egg to a licensed physician for use in assisted reproduction.
Because D gave his sperm directly to the couple and not to a licensed physician, he was not considered a “donor” by law, and a court decided that he and W1 were the child’s legal parents. If D had provided his sperm to a licensed physician to inseminate W1, such as through a sperm bank, W2 could have become C’s other legal parent by getting a confirmatory adoption. See Adoption, below.
b) Scenario B: What if W2 is a transgender woman or nonbinary person and her sperm is used to conceive the child?
Answer: If they conceived the child through sex or W2 provided her sperm directly to W1 to inseminate herself at home, then both should be considered the legal parents of the child the same as any other married, biological parents.
The result may be different if W2 provided her sperm for assisted reproduction so that W1 could be artificially inseminated by a physician.
Imagine W1 and W2 later divorce. If W1 wants to cut W2 out of the child’s life, she could argue that she is the only legal parent because W2 is a “donor” under Texas law without parental rights. W2 could argue that as a spouse providing the sperm for artificial insemination and consenting to assisted reproduction by her wife, she should be considered a legal parent of the child entitled to the same rights as W1.
This is confusing, because Texas law only refers to a “husband” consenting to the assisted reproduction of his “wife.” However, as a general matter, any gendered terms in a law are supposed to be interpreted to include other genders. So logically, this law should still apply to W2 as a spouse, but a judge could decide differently.
If W1 and W2 want to make sure that W2 is considered a legal parent, W2 may also be able to get a confirmatory adoption after the child is born. See Adoption, below.
Assisted Reproductive Technology - Example 3
Husband 1 (H1) is legally married to Husband 2 (H2). They ask a surrogate (S) to carry their Child (C). Out of H1, H2, and S, which of them will be C’s legal parents?
a) Scenario A: They use a “traditional surrogacy”, where S uses her own egg and is artificially inseminated with H1’s sperm.
Answer: S, as the biological mother and the person giving birth to the child, is the child’s legal parent. If H1 provided his sperm to a physician for S’s artificial insemination, then H1 may be considered a donor without parental rights leaving S as the only legal parent.
They must terminate S’s parental rights and follow adoption proceedings to have H1 and H2 declared C’s legal parents, but S can challenge them as C’s legal mother if she decides she wants to keep the child.
b) Scenario B: They use a “gestational surrogacy” where S is not biologically related to the child but is carrying the egg of a donor fertilized by H1’s sperm.
Answer: If they follow the appropriate legal process to prepare and have a gestational agreement approved by a judge, H1 and H2 should easily be able to establish legal rights as C’s intended parents.
While these examples illustrate some potential issues for LGBTQ+ couples, assisted reproduction is complex and beyond the scope of this guide. Your parental rights highly depend on your specific circumstances. If you’re interested in ART, or if you’ve already had a child through ART and have not yet done so, you should consult with an experienced attorney.
What about choice of law?
Not all states recognize surrogacy agreements. Even though Texas is one of the states that recognizes surrogacy, it may be possible to have your surrogacy done in another state or under another state’s laws. However, trying to choose laws is incredibly complicated and you consult with an attorney experienced with gestational agreements.
What about single parenting?
It is equally important for single parents to make sure they take the proper legal steps to ensure a donor or surrogate does not have parental rights, if they don’t intend to co-parent with the donor or surrogate.
Adoption - Non-Relative Adoption
Adoption of a child that is not biologically related to either partner is basically the same for LGBTQ+ people as it is for everyone else. If you’re married, you must co-adopt with your spouse. An unmarried LGBTQ+ person can also adopt as a single adult. Some counties have allowed unmarried, romantic couples or two platonic individuals to jointly adopt a child as well.
Otherwise, unmarried couples or two platonic individuals can try to adopt a child separately as single adults, but there will usually be a 6-month wait between each of their adoptions.
The biggest difference for LGBTQ+ couples or individuals wanting to adopt is that, under Texas law, child welfare providers can discriminate based on their religious beliefs, including refusing to work with or place children with LGBTQ+ adoptive parents. If you are wanting to adopt in Texas, you should look for an LGBTQ+ friendly adoption or child welfare services provider.
Adoption - 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 highly recommended for the couple to do a “confirmatory adoption” for the non-legal parent. Like a stepparent adoption, a confirmatory adoption lets you “adopt” and establish legal rights over the child without terminating the other parent’s rights. Returning to our example from above:
Example 2: W1 uses sperm that was donated to a sperm bank and carries C. W2 as her wife is presumed to be C’s other legal parent and can have her name listed on C’s birth certificate. However, W2 may also want to get a confirmatory adoption to make sure she has firmly established parental rights.
In the scenario where D provided his sperm for W1 to use at home, he could be declared the child’s other legal parent. In that case, W2 would not be able to adopt C without first terminating D’s legal rights to the child. D can also challenge W2 if he decides he wants to stay the child’s legal parent.
Adoption is complicated, so the full scope is beyond this guide. You should consult with an experienced attorney if you’re interested in adoption.
Through a parenting order, a person can ask the judge to declare them the legal parent of a child. In Texas, this is done through a Suit Affecting the Parent-Child Relationship (SAPCR). This may be useful for non-biological parents in particular, if they have not established parental rights through ART or adoption.
However, cases can be complicated. Under Texas law, only certain people may qualify for a parenting order, and there are sometimes strict time limits to follow. Returning to our example from above:
Example 4: Girlfriend (G) is in a romantic relationship with Boyfriend (B), but they are not married. G adopts two kids on her own and is the kids’ only legal parent. However, B acts as their father for many years. Eventually, G and B separate and G later cuts B off from having any contact with the kids. Can B ask to be declared the kids’ legal father with equal rights as a co-parent? What if B is a transgender man?
Regardless of whether he is cisgender or transgender, B can try to ask a court for custody rights if he has acted as a caregiver to the children—having actual care, control, and possession of them—for at least six months. However, he must file his lawsuit within 90 days of losing contact with the children. If he waits more than 90 days, his claim for parental rights could be rejected.
Again, parenting orders may be useful for LGBTQ+ parents who did not establish legal rights over their children earlier. In this situation, they can be used by individuals whose partners allow them to raise children as a co-parent if the partner later tries to cut them off from contact with the child. If you are facing challenges to custody or concerned about your legal rights to your children, you should consult with an experienced attorney.
More than Two Legal Parents
Texas courts have never recognized that more than two people can be the legal parents of a child. However, sometimes other adults, typically grandparents or other relatives, can be given custody or visitation rights with a child. While it is still rare in the U.S., courts in other states have declared three or more people to be legal co-parents of a child. If you have more than two adults wanting to co-parent a child, you should consult with an attorney. There may be other formal and informal options you can use to involve additional adults in a child’s care.
Child Custody Disputes
Establishing parental rights is only the first hurdle LGBTQ+ parents might face. Should the parents decide to divorce or separate, LGBTQ+ identities can cause other problems in child custody proceedings.
A judge decides who should get custody of a child based on what the judge thinks will be in the child’s “best interest.”
In a dispute between two legal parents, by default both parents should be given joint custody. As discussed above in Example 4, a non-legal parent can sometimes file a custody claim as well. However, even if the non-legal parent can file a claim, the legal parent will almost always win 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.”
That’s why it is critical to establish legal rights through the methods above if you wish to protect your parental rights over your child. It is more difficult for one legal parent to get more rights over the child or to terminate the rights of another legal parent.
Gender identity, and even sexual orientation, has not yet come up in many Texas cases, so the law is particularly unclear around these issues. Parents who are gender diverse, and parents who are raising gender diverse children, can both face challenges to custody.
a) Texas Case 1: In an extreme case, Jessica Lynn was originally given full custody of her children following her divorce in 2007. In 2009, she began to affirm her gender identity and she disclosed her identity to her two older sons, who were supportive. Jessica’s ex-wife then sued for custody of their youngest son. The judge believed Jessica had a “dangerous lifestyle,” simply because she is transgender. The judge granted full custody to Jessica’s ex and had Jessica’s name removed from the child’s birth certificate.
b) Texas Case 2: As noted above, Example 4 is based on the actual case In re Sandoval. In that case, a transgender man had acted as a father to his partner’s adopted children, but they were not married. After they separated, his partner cut off his contact with the kids. He then filed for a parenting order, making two arguments about why the court should make him a co-parent. One, that he was a man alleging himself to be the father of the children. Two, that he had actual care, control, and possession of the children for at least six months.
He lost on his first argument. The court held that only a man alleging himself to be the biological father of the children could ask for a parenting order on those grounds, which didn’t apply in this case because the children were adopted. He lost on his second argument because he didn’t file within 90 days of losing contact with the children.
While the appeals court did not directly consider issues related to his gender identity, the lower court did. He originally filed his claim before obtaining a legal name and gender marker change, and the trial court held that he didn’t have a claim as a man alleging himself to be the children’s father because he was not a man. He later obtained a court order for name and gender marker change and filed again, but the appeals court did not have to consider this further because he lost for the other reasons stated above.
While his gender identity may not have directly decided this case, it certainly raised additional issues and shows how laws designed for cisgender people can be difficult to apply to transgender individuals.
Transgender Parents - Other Cases
These are perhaps the only two reported decisions in Texas about the rights of a transgender parent. However, several courts outside of Texas have considered these issues, and many general principles of family law can help protect LGBTQ+ parents.
a) Fundamentally, parents have constitutional right to parent their children under the Due Process Clauses of the Fifth and Fourteenth Amendments. This makes it difficult to limit or terminate a parent’s rights without good reason.
b) Transgender parents may also be protected by the constitutional right of free speech under the First Amendment. The government cannot limit a person’s expressive conduct, such as how they choose to dress or present themselves, without good reason. This may prevent courts from restricting a transgender parent’s gender expression or how they communicate with their children about their identity.
c) As discussed above, both legal parents should usually be given custody of a child. So if a transgender parent has taken any steps necessary to be declared the child’s legal parent, it should be more difficult for a court to take the child away from them. As part of this rule, judges should not limit a parent’s custody based on their sexual orientation or gender identity without evidence that it has negatively affected the child. Many cases have come out in favor of LGBTQ+ parents on this issue although this is not always true, such as in Jessica Lynn’s case.
d) In other cases, courts have held that judges cannot limit a parent’s rights just to protect a child from bias and stigma. This rule was originally applied to mixed-race couples. The US Supreme Court held that children could not be taken away from a parent who was with someone of a different race, simply because their ex tried to argue discrimination against the interracial couple would negatively affect the children. This rule has been extended to LGB couples in other jurisdictions and should logically apply to transgender parents as well.
e) Last, in deciding what might be in the “best interest” of a child, a judge should consider all the facts of a situation. This can include considerations such as quality of child’s relationship with each parent, each parent’s ability to provide for child’s physical, educational, emotional needs, each parent’s willingness to support child’s relationship with other parents, stability of home life, and the child’s own wishes.
If you are concerned about a challenge to your rights as a transgender parent, consult with an attorney.
Parents of Trans Kids
Similar issues occur when children express exploration or a different gender identity. Again, while the issue has not yet come up in many cases, courts have struggled to balance parental rights. Especially when one parent supports a child’s gender identity and access to appropriate gender-affirming care, and the other parent does not.
One reported case has occurred in Texas so far, and while it continues to proceed, the affirmed parent has reportedly been given managing conservatorship, or the primary rights, over the child. While the case was supposed to be set for a hearing in September 2020, there has been no further reporting on the outcome of the case.
It is difficult to examine these family law cases, especially those involving children, because most are sealed from public access for privacy concerns. However, a recent study attempted to examine family law cases involving transgender youth. While there are some reported positive outcomes, in many instances supportive parents had their parental rights challenged because of bias and misconceptions, such as blaming the parent for the child’s gender identity, and misunderstandings by legal professionals about gender identity and appropriate care.
If you are concerned about custody of your gender expansive child, you should consult with an attorney.
Many organizations provide additional resources about LGBTQ+ parenting and family law.
Transgender Law Center
If you need an attorney here in Texas, you can look for legal help on TexasLawHelp.org here. You may also be able to apply for services from major LGBTQ+ organization, such as the ACLU of Texas, Lambda Legal, and other national organizations.