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Who gets the kids in a same-sex divorce case?

by | Jul 17, 2020 | Divorce, LGBTQ Family Law, Parenting Plans |

In a recent article I wrote, I discussed same-sex divorces for marriages that are actually informal marriages. Though informal marriages, the legal term in Texas for what some know better as common-law marriages, don’t come with the same level of ceremony as a marriage performed in a church or before a justice of the peace, they’re just as legitimate in the eyes of the law. As long as a couple meets the standard for an informal marriage in Texas, it is recognized as a marriage.

The conversation around same-sex marriage brings up one of the most important topics for any same-sex marriage: If there are children in the marriage, how does parenting time work?

The rules for same-sex marriage are the same as for differently-gendered parents. You don’t necessarily have to have joint managing conservator parents. Under the Texas Family Code, there are standard orders provided as a guide to which parent gets time with the children during any given month during the school year as well as during the summer.

Parents can agree to any schedule in their particular decree, of course, as long as it’s deemed fair enough for a judge to sign off on, and as long as it’s deemed in the best interest of the children (BIOC). Parents can determine their own schedule as long as they both agree to any changes, but they need a baseline schedule to fall back on in case they can’t agree.

While some get creative with week on, week off schedules or 5-5-2-2 schedules, many see the standard orders as a reasonable, time-tested way to give children structure and parents reasonable parenting time, and go with that. It is presumed to be in the BIOC. (When cases are left to judges to hear in court, standard orders are by and large the default, unless a parent makes a compelling case for something different.)

In courtroom divorces involving a man and a woman, some judges might be more predisposed to making the mother the managing conservator under the cultural assumptions around maternal instincts. But in same-sex marriages, there’s no specific default gender to go to — a judge is determining parenting time between two men or two women. Of course, one or both of the parents might identify as non-binary or trans, and employ a pronoun indicating that identity, but in many cases, there’s nothing that would outwardly predispose a judge one way or the other.

What’s best in these cases, like all cases, is to determine what’s best for the child.

The complicating factor in these divorces, obviously, is that one parent at most has biological ties to the child in question. But it’s really up for judges to hear arguments in those cases, and for lawyers to advocate for their clients — hopefully, in a way that best provides for what the children need.

If you’re looking for lawyers experienced in same-sex divorce cases, the Law Office of Lisa A. Vance is here for you. We’ve worked on a variety of cases involving same-sex marriages, as well as CPS cases involving LGBTQ parents. We have both the knowledge and the sensitivity needed to manage these cases and help LGBTQ people through the same-sex divorce process.