Who Gets Custody of a Child Born Out of an LGBTQ Relationship?

27 August, 2021

By Rob Musemeche

If you do not have legal parental rights, you may not be awarded custody.

While the law has not always recognized the rights of lesbian, gay, transgender, bisexual, or queer parents, this area of the law is changing. Indeed, today, sexual identity is not a bar to parenthood under Texas’ laws. While most adults, regardless of sexual identity, have the right to be a parent (either through adoption or some other means), deciding custody of a child born out of an LGBTQ relationship can still be complicated. At the law office of Musemeche Law, P.C., our LGBTQ family law attorney can help you understand your rights and options if you are involved in a custody battle as an LGBTQ-identifying person.

Automatic Parental Rights and the Birth of a Child

The first thing to know about parental rights in Texas is that at the time of a child’s birth, the parental rights of the biological parent are almost always automatically bestowed on that parent. The parent who births the child (typically the female-identifying partner) will automatically be granted full parental rights; if the mother is married, then the father will also automatically be granted full parental rights. However, if the partner is not the biological parent of the child, things become more complex.

Parental Rights for Non-Biological Parents

While parental rights may not be automatically bestowed on a non-biological parent, the law does provide an avenue for seeking parental rights. Typically, in cases involving LGBTQ parents, the non-biological parent will need to seek parental rights through a legal adoption of the child. If the parent does not gain parental rights through a legal adoption, then seeking custody of the child in the event of separation will be much more challenging.

LGBTQ Parental Rights During a Separation or Divorce

If an LGBTQ couple who has children separates or divorces and the issue of child custody is raised, the first thing the court will consider is whether or not both parents have full parental rights. If only one parent (the child’s biological parent) has legal parental rights, then this parent will almost surely be granted full custody. If both parents, on the other hand, have parental rights (one parent is the child’s biological parent and the other parent legally adopted the child), then both parents will be able to seek custody of the child; who is awarded custody will depend on what’s in the child’s best interests. The best interests of the child are determined after considering various factors, such as each parent’s parental abilities, the child’s needs, etc.

Call the TX Office of Musemeche Law, P.C. Today

If you are in an LGBTQ relationship and are getting a divorce, child custody may be a top issue in your case. For help understanding the law and your rights under the law, please call our experienced family law firm directly today. We can help you to seek parental rights or/and custody of your child. Contact Attorney Rob Musemeche directly today by phone or online to get started. We are here to advocate for you.