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Specialty tag(s): LGBTQ+ Parenting Rights, Adoption

Same-Sex Couples and Adoption of Children During Marriage

Mona Hosseiny-Tovar | November 9, 2022

Since the ruling of the Supreme Court in Obergefell v. Hodges in 2015, same-sex couples in Texas have been able to legally get married. However, over the years, rising issues regarding children born during the marriage caused some confusion as to whether a gay or lesbian married couple should pursue adoption proceedings to ensure their parental rights are fully intact. 

Whether a same-sex couple seeks to adopt a child (already born) of their choosing or seeks to have a child born of the marriage, with the child sharing one of the partner’s genes, a legal adoption with a trusted lawyer could very well be necessary to protect both parents’ rights to the child.

Do same-sex partners need to adopt children born during their marriage in Texas?

Numerous same-sex married couples have questions about whether they should initiate adoption proceedings for children born during their marriage when one parent has no biological ties to the child. In Texas, for married couples of the opposite gender, any child that the wife births during the marriage is presumed to be the biological child of the husband.

In other words, unless parentage is disputed upon divorce, the law provides that a child born during a marriage of a wife and husband is the biological child of the husband. This presumption that the “non-carrying” parent (because essentially the husband is the non-carrying parent) or the man of the relationship is the child’s second parent in heterosexual couples does not necessarily extend to same-sex couples.

For instance, if two females marry, and then one female bears and gives birth to a child during the marriage, whether with the help of a known or unknown donor, Texas law is divided on the issue of whether the non-carrying female or the non-biologically-related female has complete parental rights to the child upon divorce of the couple or death of the carrying mother.

How do you file for second-parent adoption in Texas?

Since Texas courts are divided on the presumption issue as extended to same-sex couples, it is crucial to file for a second-parent adoption, which is very similar to the proceedings for a step-parent adoption in Texas. First, a petition for adoption is filed, listing both parents of the child as petitioners. The non-carrying or non-biologically-related parent would be considered the adoptive parent and would have to file with the court the necessary items pursuant to the adoption provisions of the Texas Family Code, like a federal background check and an adoption social study. The social study must be completed by a licensed social worker, and the study must be filed with the court. With the help of an attorney who specializes in same-sex adoptions, a smooth and fast process is much more guaranteed.

For male couples, usually a female surrogate is involved if the couple chooses to birth a child during the marriage, using one of the male’s genes. In these circumstances, again, the presumption as described above does not extend to either male in the couple, and the biological father would have to sign an acknowledgment of paternity, in conformity with the requirements of the Texas Family Code. The non-biologically related father or husband could then pursue a second-parent adoption to obtain legal rights for that child.  

What are the benefits of initiating a second-parent adoption for same-sex Texas couples?

At the onset and because the stigma of same-sex couples has relaxed over the years, many same-sex married couples get by just fine with the child’s schools, doctors, insurance providers, etc., without a legal court order which legally grants adoption of the child to the non-biological parent. However, they will likely face hurdles as the child grows because there are many entities in Texas (I.e., children’s hospitals or emergency services or facilities, schools/daycares) that require an adoption court order to allow for the non-biological parent to exercise parental rights to the child; for instance, in the circumstance where a legal parent’s consent is required to initiate medical treatment for a child.

Because of these concerning circumstances, many parents don’t want to wait for a dire or emergency situation and in those desperate times, cannot exercise these vital and fundamental parental rights to their children. As such, it is recommended to be on the safe side and initiate a second-parent adoption for the non-biological parent to legally adopt the child born during the marriage. One vital requirement to keep in mind before filing an adoption is that the 6-month prong must first be met, as with any adoption case in Texas.  In other words, there must be some showing that the child has resided with the parents for at least six months preceding the filing of an adoption lawsuit.

In recent years, same-sex Texan couples are allowed to be listed as both the parents on the child’s birth certificate. In fact, Texas Vital Statistics has revised their forms to allow for both parents, no matter their genders, to be listed on the child’s birth certificate.

Options for parents include listing the names of “Mother 1” and “Mother 2,” or “Father 1” and “Father 2,” OR “Parent 1” and “Parent 2.”  Still, even though the non-biologically-related parent would have a birth certificate to show these rare entities his/her name on the birth certificate, in Texas, simply having the names of two parties does not carry with it certain legal protections that a court order would.  In other words, the names of parents on a child’s birth certificate does not adjudicate parentage under chapters 153 and 160 of the Texas Family Code. This is also true for heterosexual couples that have the names of “Mother” and “Father” listed on the child’s birth certificate.

Learn More

A skilled family lawyer, Mona Hosseiny-Tovar guides clients through the complexities of divorce while being accessible every step of the way. Her goal is to give clients support and peace of mind during one of the most challenging times in their life.  LGBTQ + divorces and custody cases, child support enforcement cases, and same-sex second-parent adoptions are among her areas of focus. She speaks Farsi and understands the issues involved in multicultural marriages.

For more information on second-parent adoption, please contact Mona Hosseiny-Tovar at 214-373-7676.