Will the Real Parent Please Stand
What makes a “real” parent? Love? Cuddling? Money? Making the car pool run in the morning and afternoon? Staying up with the children when they have the latest bug (and enduring the harder version of the bug when you invariably catch it)? The law governs and guides us – but our Courts will need to be open to new interpretations in some cases, to wit: same sex parents.
With same sex couples, there are added complications. Often, only one party to the relationship has a legal relationship with the child(ren).In Texas, the following definitions apply:
Sec. 101.024. PARENT. (a) "Parent" means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. Except as provided by Subsection (b), the term does not include a parent as to whom the parent-child relationship has been terminated.
Text of subsection effective until September 01, 2018
(b) For purposes of establishing, determining the terms of, modifying, or enforcing an order, a reference in this title to a parent includes a person ordered to pay child support under Section 154.001(a-1) or to provide medical support for a child.
Text of subsection effective on September 01, 2018
(b) For purposes of establishing, determining the terms of, modifying, or enforcing an order, a reference in this title to a parent includes a person ordered to pay child support under Section 154.001(a-1) or to provide medical support or dental support for a child.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1999, 76th Leg., ch. 556, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 821, Sec. 2.05, eff. June 14, 2001.
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.03, eff. September 1, 2005.
Acts 2015, 84th Leg., R.S., Ch. 1150 (S.B. 550), Sec. 5, eff. September 1, 2018.
Sec. 101.025. PARENT-CHILD RELATIONSHIP. "Parent-child relationship" means the legal relationship between a child and the child's parents as provided by Chapter 160. The term includes the mother and child relationship and the father and child relationship.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 2001, 77th Leg., ch. 821, Sec. 2.06, eff. June 14, 2001.
Lack of Legal RelationshipOften, in a same-sex relationship, one party has established a legal relationship with the child(ren). Often the other parent may be considered a "legal stranger" to the children. Clearly, a more liberal definition than the one that appears above must be implemented in light of the holding in Obergefell v. Hodges.
Texas law will need to look to legal status, not biological status. For instance, in Massachusetts, the Courts have determined that both partners to a same-sex marriage were considered legal parents of a child. Texas law has to look to changes in a variety of codes; for instance, if a child is born to a woman who is not married, will that child still be considered illegitimate if both parties to a lesbian relationship wish to have one another listed on the child's birth certificate? Can such a child have the right to inherit from each parent? Must the parent who did not bear the child legally adopt the child? In California, both partners in a domestic partnership or same sex marriage are considered parents to a child born to the relationship, with the same rights as an opposite sex couple. For men, these distinctions can be troubling, and the difficulty in establishing a parent-child relationship even more confounding. The reality that men cannot give birth translates to more steps for a gay man who seeks to assert his rights as a parent.
What to Look for?Kendra Fershee suggests the following:
1. Allow non-biological gay and lesbian parents court access, given the fact that they have chosen to become parents, have been parenting a child as a result of that decision, have a personal stake in the controversy given the foregoing, creating an issue in need of resolution by the Court.
2. Look for a statement of fact in the complaint filed - the non-biological parent should state that he or she was the partner of the biological or legal parent when the decision was made to bring a child into the marriage by adoption, artificial insemination, or surrogacy, and that the two parents intended to and did co-parent the child following the birth of the child.
Potential Factors to ConsiderFershee suggests the following:
Those considerations may include whether the adult has fed, bathed, read to, clothed, schooled, participated in school activities with, disciplined, and arranged playdates for the child. In Texas, Holley v. Adams has often been cited as a means of measuring impact as a parent, which looks to the following factors:
1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. any emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent child relationship is not a proper one;
9. any excuse for the acts or omissions of the parent.
Gay and lesbian partners often use existing laws to block an estranged partner from access to or possession of a child. Instead, a fair determination of issues should be implemented - in Texas, and in every state.