In the context of the same sex marriage with children, there are three possible relationships.
- A gay or lesbian couple adopted a child neither of which are the natural parent of the child;
- one party to the same sex marriage has a natural child and the other party has adopted the child; or
- one party to the same sex marriage has a natural child and the other party has acted as a step-parent.
Regardless of the relationship as set out above, any litigation involving children will have to be brought in a family court and is a “Suit Affecting the Parent Child Relationship” commonly known as a “SAPCR.” Starting at the basics, a SAPCR is a lawsuit that will determine the rights, duties, support and visitation between two parents. For example, the right to establish the residence of the child; the right to make educational decisions for the child, or the right to make medical decisions.
When anyone adopts a child, for all purposes that person who adopted the child is that child’s parent as if that parent gave birth to the child. The law makes no distinction between a DNA parent and an adoptive parent. The adoptive parent stands in the shoes of the DNA parent. The adoptive parent is the parent. Taking the examples above, under item 1 and 2, both parties to the same sex relationship are parents to the child. Therefore, upon separation the parties will have to file a SAPCR in order to determine each respective parents rights, duties, support and visitation.
In the scenario, item 3 above, where one parent is a DNA parent and the other has cohabitated with the child we are looking at a different situation. Here the non-adoptive parent, the “step-parent” if you will, must establish “standing” in order to proceed with a SAPCR case. This is colloquially referred to as “step-parent” standing. Under Section 102.003 of the Texas Family Code, a person who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition may sue for conservatorship of the child. Further, a person with whom the child and the child’s managing conservator or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the managing conservator or parent is deceased at the time of the filing of the petition may file a suit for conservatorship of the child. This is a 90 day rule. If a suit for conservatorship, the SAPCR, is not brought within 90 days under this scenario, then the suit will be barred.
Ultimately, whether the parents of a child are gay or not, all suit involving children come down to a best interest standard. What is the best interest of the child?
Earl Jackson and the Jackson Law Firm lawyers have litigated child custody cases time and again. We remain on the cutting edge of this are of the law in order to provide our clients proactive representation on issues that matter the most. We practice in Dallas, Fort Worth, Denton, Collin County and Kaufman. Call us today at 214-369-7100.