Child Custody & Visitation
In this article, learn about what you need to do to establish parentage as a same-sex couple including information about adoption, birth certificates, and assisted reproduction (gestational agreements).
If I or my same-sex spouse has a child, do we both need to adopt the child? What if we are unmarried?
Although same-sex couples can legally marry in Texas, adoption is still important to protect the parental rights of the non-biological parent. All legally married couples are treated the same in the adoption process in Texas.
Unmarried same-sex couples can legally adopt in Texas–but are likely still required to adopt as two single people jointly adopting the same child, not as a couple. This process requires one parent to go through the adoption process first, then the other, with a minimum six-month delay between the adoptions.
However, because Texas recognizes common law marriage, it is unclear how this change in policy will affect long-term couples who are unmarried. If you and your partner or spouse are thinking about jointly adopting a child or if you wish to adopt your partner’s biological child, you should speak with a family law attorney who specializes in LGBTQ+ adoptions. They will be able to understand adoption law and the challenges LGBTQ+ couples may face in the courts and county you are in.
Why is a legal adoption important?
A legal adoption enables you to have the same rights and responsibilities with respect to the child as a biological parent. This protects your relationship to the child as well as the child’s relationship to you.
How long does the adoption process take?
The amount of time it takes depends on your circumstances, but it can take as little as a few months to complete the adoption process. Read Texas Adoption Law for more information.
Do I have to do a background check for adoption?
Yes, both parents (biological and nonbiological parent) must undergo an FBI background check.
What is a home study? Who does the home study?
Texas requires prospective parents to participate in a home screening prior to the adoption. The purpose of the screening is to gather information about the applicants in order to determine if the family is fit and ready for the adoption.
The study typically evaluates the prospective parent’s family history, health, financial situation, and home environment. The home study includes a home visit. After completing the home study, the evaluator will develop a report on their findings, which includes a recommendation on whether the participant(s) should adopt.
The Department of Family and Protective Services (DFPS or CPS) created the Texas Adoption Resource Exchange (TARE) and has a page on Adoptive Home Studies.
Are tax credits available for adoption expenses?
Yes, it is possible to obtain an adoption credit for expenses, including court costs and attorney fees, related to the adoption. You can read about Financial Incentives for Adoption on the TARE website.
Can the names of both same-sex parents be listed on the Texas birth certificate of an adopted child?
Yes. Under Texas Department of State Health Services (DSHS) guidelines, the birth certificates of adopted children may now reflect the names of both parents, regardless of the parent’s genders.
For any adoption ordered on or after June 26, 2015, supplementary birth certificates for children born in Texas will be issued/amended for the adopted child to include same-sex couples whose names are listed on the court order or formal certificate of adoption as the adoptive parents. Documentation must be provided to this effect, along with other standard documentation required for issuance/amendment of a supplementary birth certificate for an adoption.
For adoptions ordered prior to June 26, 2015, amendments to supplementary birth certificates previously issued, will be processed and issued, as requested, to list the names of both persons of the same-sex couple if both are named as parents in the court-ordered adoption. Documentation must be provided to this effect, along with other standard documentation required for issuance of an amendment to a supplementary birth certificate for an adoption.
More information on New Birth Certificate Based on Adoption is available through DSHS.
If my same-sex partner or I give birth to a child during our relationship, can we both be listed on the birth certificate even if we are not married?
The Texas DSHS guidelines do not address whether a child with two parents of the same sex who are not married may similarly receive a birth certificate that reflects both parents. Given the recommendation’s silence on that matter, it is likely that they will not. In contrast, in Texas, an unmarried woman may place the name of her child’s father on the child’s birth certificate easily, and without petitioning a court.
What about assisted reproduction?
Under Texas law, “each intended parent" may enter into a gestational agreement to have a child through assisted reproduction. For gestational agreements to be valid, the law requires that the intended parents are married. Since same-sex couples can now marry, they are now also allowed to enter into gestational agreements with a third party.
Birth certificates will be processed and issued and amended for any births occurring in Texas, for which persons that are a same-sex couple are legally authorized to be the intended parents of the child as authorized by Texas Family Code 160, subchapter I. Documentation must be provided to this effect, along with other standard documentation required for issuance/amendment of records for these vital events.
If a couple enters into a gestational agreement and then files for divorce, the couple must state in their Petition for Divorce:
- that the spouses entered into a gestational agreement establishing a parent-child relationship between the spouses as intended parents and an unborn child (once the child is born);
- whether the gestational mother under the agreement is pregnant or the child who is the subject of the agreement has been born; and
- whether the agreement has been validated under Texas Family Code 160.756.
To read more, read Texas Family Code 6.406(a-1).
So, if there is a gestational agreement, and a Suit Affecting the Parent-Child Relationship is to be filed, it needs to be combined with the divorce action.
Texas Adoption LawThis article tells you about adopting a child in Texas.
Stepparent Adoption in TexasThis article answers frequently asked questions about stepparent adoption in Texas.
LGBTQ+ Parental RightsThis article discusses LGBTQ+ family law issues, including assistive reproductive technology, adoption, and custody disputes.