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Same-Sex Parentage

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If I or my same-sex spouse has a child, do we both need to adopt the child? What if we are unmarried?

Even though Texas now authorizes same-sex couples to marry, adoption in Texas is still important to protect the parental rights of the non-biological parent.

Previously, same-sex couples could legally adopt in Texas—but were required to adopt as two single people jointly adopting the same child, not as a couple. This process required first one parent, then the other, to individually go through the adoption process, with a minimum 6-month delay between the adoptions. Under the new guidelines, all married couples will be treated the same and same-sex couples will be allowed to adopt as a couple, provided they are legally married.

Unmarried couples will still likely be required to follow the old two-step process, but—due to Texas’ recognition of 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, consult an LGBT family law lawyer for assistance.

 

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.

 

 

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 her findings, which includes a recommendation on whether the participant(s) should adopt.

 

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.

 

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.  

 

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 Department of State Health Services (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, ch. 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, see Texas Family Code  6.406(a-1) (effective September 1, 2019). If that is the case, the petition for divorce has to state:

  1. 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);
  2. whether the gestational mother under the agreement is pregnant or the child who is the subject of the agreement has been born; and
  3. whether the agreement has been validated under Texas Family Code 160.756

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.