Child Support and 50/50 Possession in Texas
We commonly encounter clients who have a misconception that having equal possession time with the children always results in no child support being owed by either party. However, 50/50 possession is rarely ordered by the Court in a contested proceeding. Further, in our experience, when the Court imposes a 50/50 possession schedule in Travis County, the Court will make the higher-earning party pay offset child support to the lesser-earning party. Offset child support is the difference between what the two parties’ child support obligations would be. This is calculated by applying the appropriate guideline support percentage to both parties’ net incomes, and subtracting the lesser amount from the greater amount, with the difference being the higher-earning party’s obligation.
For example, if there are two children, and Party A’s net income is $1,000, you would apply 25% to $1,000 which would give you $250. If Party B’s net income is $2,000, you would apply 25% to $2,000 which would give you $500. Subtracting $250 from $500 results in Party B having to pay $250 per month to Party A in offset child support.
This calculation is not explicitly set out in the family code, but has instead arisen from common court practice based on application of Texas Family Code section 154.123(b)(4). This authorizes the Court to determine whether the application of guidelines would be unjust or inappropriate under the circumstances considering the amount of time of possession of the child exercised by each party. In light of the fact that this is the most likely outcome in court, it has also become a common outcome in mediation as mediators consider what the court would likely order in this respect.
In more rare occurrences, the court will split possession of the children, giving primary possession of one child to one parent, and primary possession of another child to the other parent. This will usually also result in offset support as discussed above.
If the prospect of not paying child support is motivating or incentivizing you to seek a 50/50 possession schedule, you should consider the likely possibility that even if you are successful in obtaining 50/50 possession, you may still owe support. Likewise, if you do not want 50/50 because you do not want to lose child support, you may still receive child support if you end up with 50/50 possession of the children.
Child support can be very complex, and the calculations may depend on the unique facts of each case. If you need advice regarding child support, please set up a free 30-minute consult and retain our office to help you.
How Do I Get 50/50 Custody in my Texas Divorce?
At some point, almost every one of our child custody clients wants to discuss the idea of “50/50 custody.” We often find that what the client means by “custody” is different from what we family law attorneys understand the term to entail. Much of the confusion stems from the client not distinguishing between the two elements that make up child custody: (1) rights and duties; and (2) possession and access. To be clear, in this blog, we are strictly discussing the issue of 50/50 possession and access, meaning the arrangement whereby divorced or separated co-parents have equal time with their children.
Here’s a brief explanation of what 50/50 possession and access usually looks like. There are two 50/50 schedules that are common: week-on/week-off and 2-2-5-5. The week-on/week-off arrangement is a straight forward schedule in which the parents simply alternate possession of the child for an entire week at a time, beginning and ending on a specific day of the week. Under the 2-2-5-5 routine, the child lives Monday and Tuesday with one parent, then Wednesday and Thursday with the other parent. The parents will then alternate weekend possession beginning on Friday. This results in one parent having a 5-day block one week, and the other parent having a 5-day block the following week.
It is important to realize that Texas courts very rarely order 50/50 possession. While some states, such as Arizona, have a statutory presumption in favor of 50/50, Texas does not. In Texas, 50/50 almost always results from an agreed arrangement reached through mediation or informal settlement.
The two main instances in which we’ve seen the Court order 50/50 are:
(1) When the child(ren) are very young and have never lived apart from either parent; and (2) When the parents have been separated for some time and have already been informally exercising a 50/50 arrangement.
Many of our clients are discouraged to hear that 50/50 is an uncommon outcome in a contested proceeding. Our firm is sympathetic to that feeling, however, our experience has given us some insight into why the courts are hesitant to impose a 50/50 schedule. Some of the most common justifications that we have heard judges give for why they do not like to order 50/50:
(1) The week-on/week-off or 2,2,5,5, routines only work if the parties co-parent well together. If one parent is forcing a contested hearing to prove that 50/50 isn’t in the child(ren)’s best interest, then, from the judge’s perspective, it’s obvious that the parties don’t have a good co-parenting relationship;
(2) The reasoning behind the standard possession schedule is that children need consistency. It’s rare that both parents can provide the same level of consistent engagement and routine during the week, so judges prefer to appoint the parent who they feel is best able to provide consistency and routine as the parent who has possession on weekdays during the school year;
(3) The standard possession schedule is not significantly less than 50/50, so there’s no real advantage to a 50/50 arrangement; and
(4) If litigants know that the standard possession schedule is the only likely outcome, then they are less likely to require a contested hearing.
If you think that you may want “50/50 custody,” either in your initial order or in a modification order, then you need to consider the above information before consulting with an attorney. Make sure you understand what you’re asking for when you tell your attorney you want 50/50 custody. Additionally, if child support plays any role in your motivation for 50/50, then be sure to see our previous post on the relationship between 50/50 schedules and child support to further inform your opinion. Finally, keep in mind that an agreement with the other party is the best way to ensure that you get the schedule that suits your family, so try to explore ways to incentivize the other party to agree to 50/50 before you go to court.
Creating Your Texas Will
Most people think of end-of-life planning as just a will: a simple, single document that distributes their worldly possessions. But it can (and should) contain more. First-most, you consider having powers of attorney and advance healthcare directives in place.
In Texas, you’ll need separate documents for specific powers of attorney. A medical power of attorney is different from a legal power of attorney, and it’s generally best to have both. A medical power of attorney is an agent who has the authority to make medical decisions for you. A legal power of attorney will allow an agent to manage your property and finances. Of course, you could have one person serve as a legal and medical agent for you, but Texas law requires separate grants of authority. When the agent’s authority to act begins and ends is up to you.
An advance healthcare directive in Texas is a written statement describing your wishes regarding medical treatment. You may want to include a “do not resuscitate” provision, or maybe allow a natural death in your home. The document is legally binding, ensuring your family and health care providers carry out your wishes.
You can also include funeral plans in your will. You can decide how your remains are handled. These days there are several options from which to decide, including traditional burials or cremation, as well environmentally friendly burial options preventing excess pollution of the earth. Do you believe your funeral shouldn’t be a sad affair, but rather a celebration of your life? Is there a religious tradition you want followed, or a song you want played? The style of funeral you have, down to specific details, can be included in your will as well. Perhaps most importantly, in your will you may set and fund a budget for your chosen services.
Medical, funeral and estate planning can be very time consuming and stressful. With these elements included in your will, you can help make things easier your loved ones when the day comes. Plan a little, or a lot, knowing that you have choices and power when it comes to the end of your life. The Law Office of Brandon Bledsoe can assist with all of your wills and estate planning needs. Contact our office for a free consultation.
The court system is tricky and difficult to navigate, especially for those who have no experience with it. And when you’re in the difficult position of a divorce, you’re likely not worried about court structures and venue. However, knowing where to file for divorce is extremely important. This is because, in general, the area of family law is reserved to state regulation. Thus, the laws of divorce in Texas can be dramatically different from the laws in New York. Even within Texas, Travis County can interpret a case quite differently than adjacent Williamson County. When consulting your attorney about your case, where the suit will be filed will have a significant effect in determining their strategy.
The Texas Family Code states that couples may not file for divorce in Texas unless either the petitioner (filing party) or the respondent (non-filing party) have lived in Texas for the past six months and are a resident of the county in which the suit is filed for the past 90 days. For example, if you lived in Texas seven months before filing for divorce but recently moved to Bexar County just 30 days ago, you wouldn’t be able to maintain your suit there. This is to discourage “forum shopping.” This is a term referring to people who file their suit in a county they have no attachment to under the belief that it will give them the result they want.
The Code recognizes that moving out of state is common in break-ups, so it allows the court to maintain jurisdiction if this occurs. For instance, if one spouse lives in Texas, but the other spouse lives in Oklahoma, the spouse living in Oklahoma could file their divorce petition in Texas despite not living there themselves. On the other hand, if the Texas spouse is filing for divorce in Texas, the court can still have authority over the Oklahoma spouse. The Code specifically states that if the last marital residence of the parties was in Texas and the divorce petition was filed within two years of the other spouse leaving the state, a Texas court can hear the case. However, if this doesn’t apply, other bases for jurisdiction may be pursued in accordance with the rules of civil procedure.
Issues like these make consulting a qualified divorce attorney critical. If your ex-spouse lives outside of Texas, be sure to talk to an attorney before filing any documents yourself. If you try to file yourself and fail to meet court rules, you could subject yourself to hundreds of dollars in fees. You may even be subjected to jurisdiction that you have no connection to. The process is never as simple as it seems, which is why the interstate divorces should always be handled by professionals.
The discovery phase of your suit is critically important. It is very common for clients involved in lawsuits to view the discovery process as a pointless waste of time. In general, this is not true. Much of the evidence that is gathered is, in fact, necessary moving forward toward resolution of your case. While the purpose of the information may not always be obvious at first, it will almost certainly be necessary to frame the facts that inform the pleadings, drive settlement negotiations at mediation, or be presented as evidence at trial.
It will be time-consuming, and it will may be difficult to obtain some of the information requested. Almost everyone resents this process to some extent. However, you should trust us when we instruct you as to how to move forward and do this correctly, rather than spending valuable (and billable) time bemoaning the effort that has to be put in to it. Having done this hundreds of times, we have heard all of the complaints many times over and we can assure you that protesting will have absolutely no effect on the outcome of the suit. What it will affect is your bill.
You may think you shouldn’t have to produce a document or answer a question posed, or you may consider withholding this information deliberately. You may try to avoid producing as inasmuch as you can. Be aware that this type of avoidant behavior can cost a great deal of money and can ultimately ruin your credibility.
Refusing to participate in a good-faith manner will result in serious consequences. The Court can force you to pay the other party’s attorney directly for non-compliance. Further, if you demonstrate a lack of interest in a forthright evidence-gathering process, the Court will conclude that you disrespect the Court, or the law, or that you are being deliberately deceptive. If the Court makes this assessment, you will have dealt yourself a crippling disadvantage moving forward. The Court could refuse to allow your evidence in, it could dismiss your filings (strike your pleadings), and it can even dismiss your case entirely. Eventually, through these means, the Court will force you to answer.
You must answer all of the discovery requests completely and truthfully. This office, and every other office and attorney in Texas, will absolutely comply with the discovery process, and so will you. This is a fundamental and intractable component of litigation, and it can be invoked in virtually any lawsuit.
You must begin this process as soon as you are asked. All of the materials that are being requested need to be worked on daily until the process is completed. You should bring all of you materials into our office (or upload them to a file-sharing service) long in advance of the deadline so that we can preempt any shortfalls. Plan to have finished gathering documents and answering interrogatories within two weeks. If you do not make a persistent and diligent effort to produce discovery properly, the contract between you and this firm allows your attorney withdraw from your case. The attorneys on your case will have no choice but to do that if you do not comply.
How to Answer
Interrogatories
We will have a meeting or call to discuss what the Interrogatories are asking for. Then, you should prepare a draft of the answers, ideally answering in-line with the questions posed using a text-editing software. Don’t worry too much about what you are writing, as all you need do is be honest about the question posed. Do not offer additional information beyond the answer to the Interrogatory, but answer the question asked directly and succinctly.
Your responses will need to be signed, and we always have them verified before a notary. You can usually find a notary at your local bank or credit union, as well as any of those pack-and-mail-type places, such as a UPS store. We can also do this in-office if one of the notaries is here, but you will have to schedule a time for that.
Request for Production
This is usually the most time consuming response to generate, because you must produce documents responsive to most, if not all, requests. You may have to order older bank statements from your bank, for instance. You should produce documents in Portable-Document Format (pdf) whenever possible, and you should produce formal, complete statements rather than screenshots or downloaded text or comma-separated-values (CSV) files. Invest the energy in doing it right the first time, as we will ask you to do it a second time if it isn’t presentable. Always get actual statements.
You may not understand every question in the request for production, which is why we have our initial meeting or call to go over what you need to do. After our call, you should begin gathering the requested documents and plan to bring them in within 1 to 2 weeks. You should organize them electronically in folders corresponding to the number of the request, like this:
If you choose to present the material in a disorganized fashion, your paralegal or attorney may have to sift through the information and organize it while billing at his/her hourly rate. This will be an additional and unnecessary expense to you. The more work you do in completing this task, the less you will be charged in having our office put it all together for service to opposing.
Request for Admissions
This document is pretty straightforward. You simply respond with ‘admitted’ or ‘denied’.
Rule 194 Request for Disclosures
This is a technical document to be exchanged between attorneys’ offices, but it does require some input from you in that you will identify the name, address and telephone number of any potential witnesses in your case, including you and the opposing party, and the attorneys, as well as any other witnesses.
The discovery process is often arduous and tedious, but that doesn’t mean it can be ignored. By following these guidelines, you can help avoid unnecessary delays and costs associated with your case.
As discussed in our post about where to file a petition for divorce, Texas venue and jurisdiction laws can be very difficult to navigate. Similar issues can be found in laws regarding original suits affecting the parent-child relationship (also known as SAPCRs). Persons wishing to file a SAPCR must deal with more complex language and exceptions, making it more important to consult an attorney rather than doing anything on your own.
In order to file a SAPCR, you must have standing. ‘Standing’ is what gives a person the legal authority to file a certain kind of lawsuit, based on their relationship to the subject of the suit. Texas Family Code Section 102.003(a) lists all the different parties that may bring a SAPCR. Of course, the parents of the child, a custodian of the child, and government agencies may bring suit. Additionally, standing may be obtained by a person who has had care, control, and custody of the child for at least 6 months.
Surprisingly, grandparents and other blood relatives are not considered to have standing to bring a SAPCR by their status as a relative alone. They must have some other legal relationship described in Section 102.003(a). The Texas Family Code often refers to relatives “within the third degree of consanguinity,” which is a broad term encompassing the following individuals for the purposes of the Texas SAPCR: grandparents, aunts, uncles, first cousins, and great grandparents. The only way these relatives may bring a SAPCR under Section 102.003(a)(13) is if the child’s parents are both deceased at the time the petition was filed.
However, Section 102.004 provides an emergency exception to these relatives. A grandparent or other relative of the child related within the third degree of consanguinity may file a suit asking for conservatorship provided they give the court proof that 1) the child’s present circumstances will significantly impair their physical health or emotional development; or 2) both parents, the surviving parent, or the managing conservator filed the petition or otherwise consented to the suit. The result is that these family members have no ability to interfere with the parent-child relationship absent clear proof of an emergency or consent from the parents, making these suits difficult.
The laws of venue and jurisdiction apply to SAPCRs as well. According to Texas Family Code Section 103.001, in general, an original SAPCR must be filed in the county where the child resides. There are a myriad of exceptions to this rule, though they are too numerous and complicated to discuss here. It’s for this reason that you should always consult with an attorney before filing a suit yourself. A family law attorney will examine court records to determine whether any other court orders may control the suit. For instance, there may be issues with continuing exclusive jurisdiction from another court, or an exception may apply based on the residence of the child’s guardian.
As with divorce cases, filing into the wrong court will cost you a significant amount of time and money. SAPCRs are often much more complex than divorces, requiring more time and effort by everyone involved. Consult a specialist before you file: you’ll be glad you did.
Legal Separation and Post-nups in Texas
A common question asked by individuals seeking a divorce is whether they can legally dissolve the marriage while still living together. The short answer is yes, because Texas law does not require the couple to separate before or during divorce proceedings. Indeed, a divorce may be finalized while the couple is still living together in certain circumstances.
Still, many couples find themselves wishing to separate before a divorce proceeding has begun. Texas law does not recognize mere separation as a method of dissolving the marriage, however. Texas law only recognizes the processes of divorce and annulment to dissolve valid marriages (death of one spouse is a valid method of dissolution as well, though it’s not a legal procedure). While living apart, you and your spouse will remain married until the marriage is dissolved by divorce or annulment. However, this could be detrimental to the assets of one or both parties. Additionally, there can be disagreements over asset and debts. In this event, a postnuptial (“postnup”) agreement can help make the process of splitting up smoother. It’s important to note that while most people use the term postnup to describe post-marital agreements and prenup to describe pre-marital agreements, Texas law does not. Texas law only recognizes the terms “marital agreement” and “pre-marital agreement.” For clarity, this post will describe marital agreements as postnups.
A postnup functions in essentially the same manner as a prenuptial (“prenup”) agreement. Most people have heard of a prenup and are familiar with the idea of protecting parties’ assets before entering into a marriage. Just as well, a postnup agreement is designed to protect the parties’ assets once the marriage has ended. Unfortunately, issues of child support and child custody cannot be included in the postnup agreement under Texas law. In short, this is because it’s against public policy for a judge to not conduct a “best interest of the child” analysis in the majority of cases. The only time this analysis doesn’t occur is when a mediated settlement agreement has been reached. However, issues of pet custody may be agreed to in either a prenup or postnup agreement. See our post on petnups for more information.
So, what would you include in a postnup agreement? Anything you feel is necessary to secure your assets. You may want to include provisions that protect inheritance rights for your children, or include language that prevents either spouse from incurring the debts of the other. Like a prenup agreement, a postnup agreement is highly customized to you and your spouse.
Consulting an attorney will help you ensure your postnup agreement accurately reflects your wishes, and ensure that it conforms to Texas law. There are certain conditions that must be met for a postnup agreement to be valid, and it’s difficult for a non-attorney to know how to satisfy those requirements. Your attorney can help you come up with a plan that works for your family, and advise you on what’s appropriate to include.
As with any legal document, don’t try to draft it yourself. Be sure to consult with a family law attorney—it will save you time, money, and headaches. You can contact our office anytime using our website’s chatbox, or by filling out the contact form at the bottom of the page. You can also give us a call at (512) 944-3329 during our business hours.
What to Expect in Mediation
Mediation has a positive reputation in the legal community, and for good reason.
Trials are extremely stressful, costly, and time-consuming. There’s a great deal of uncertainty, and many clients find it difficult to confront their spouses on the witness stand. On the other hand, mediation provides a calm environment where the parties and their attorneys are separated from each other. It’s not an adversarial environment, and nearly everyone is more comfortable in an office space than a courtroom. Costs of mediation can be very flexible based on the time needed for the case and the mediator themselves. Prices can range from $600 to $2,600 for eight hours of mediation, which allows clients to look for help that fits in their budget. Mediation can be for half- or full-days, depending on the nature of the case and the issues being negotiated.
While most clients know that mediation is a good tool, few know what to expect on the day of. When you arrive at the mediator’s office, they will set you up in a room with your attorney. You do not have to see your spouse’s attorney, or even your spouse throughout the entire process. The mediator will come in and explain their process and how mediation looks in their office. Your attorney may want to go over your proposals with you one more time to ensure you’re asking for everything that you want. Like court, there’s a strong chance you won’t get everything you asked for exactly the way you asked for it, but it’s critical to tell your attorney all of your concerns. After all: you can’t get what you don’t ask for. Once the mediator has heard everything, they will go to the other room to confer with your spouse and their attorney. The mediator is a neutral third-party who communicates between you and your spouse, so there is never any direct confrontation. Furthermore, all negotiations between you, your attorney, and the mediator are kept confidential and will not be shared with the other side. The discussions that happens in mediation stays in mediation and cannot be used in a trial, should an agreement not be reached. Additionally, the mediator facilitates negotiation in order to get you and your spouse to reach a realistic, workable agreement.
If an agreement is reached by the parties, then the mediator will draft a Mediated Settlement Agreement, or MSA. This is a binding agreement that cannot be deviated from by the parties after signing it, though it does not have the legal effect of a final divorce decree. In a highly controversial Texas case, In re Stephanie Lee, the court refused to enter a decree based on the terms of the MSA due to fear that it would endanger the child. However, the Texas Supreme Court held that the MSA was valid as written and irrevocable by the parties or the Court, as the purpose of the MSA is to avoid litigation and courts cannot unilaterally determine that litigation regarding the MSA should take place. The MSA can be set aside, but only in extremely rare circumstances–be sure to voice your concerns to your attorney if you think this is possible.
Once the parties and their attorneys have agreed to the form of the MSA and signed it, one attorney will agree to draft the final divorce decree in accordance with the MSA’s terms. The attorneys will then exchange the drafted decree with their clients and review it for consistency. Once approved, the parties and attorneys sign the divorce decree and it is taken to the courthouse to be entered. Many clients are itching for their divorce to be finalized as soon as possible, but it’s important to realize that the process can be slow. In the state of Texas, no divorce can be finalized before the expiration of a 60 day waiting period that starts when the petition for divorce is filed. Even if a MSA is reached before the 60 day period expires, it cannot be entered until the waiting period requirement has been met. Further, the process of exchanging drafts between attorneys and clients can be tedious, so don’t expect the divorce to be finalized within a few days of the MSA being reached. However, this waiting period will be present in litigation as well. Unfortunately, it’s a part of the divorce process, and can’t be avoided even by mediation.
Once the judge signs the divorce decree, your divorce will be finalized. Divorce is difficult, but using a mediator can cut down on stress, time, and cost. Brandon Bledsoe is a skilled mediator and enjoys working to help families avoid litigation. If you think mediation is right for you, feel free to send us a message or call our office at (512) 944-3329 and inquire about our prices and availability. If you know you’d like to book mediation with Mr. Bledsoe, please click here.
Trans Rights and Texas Family Law
You don’t have to do this alone. Our office recognizes the unique challenges faced by transgender Texans, and our goal is to help you navigate these complex legal processes. If you’d like a free 30 minute consultation, you’re welcome to call our office or send a message through our website to schedule a meeting so that we may best determine your needs.
Changing Your Name
One of the most empowering things a person can do is change their name. However, it’s still a legal process, which means you should consult an attorney before beginning the process to ensure all your paperwork is in order. The first step in the name change process is to draft a petition and an order. The petition is a legal document asking the court for your name to be changed, while the order is the legal document signed by the judge actually granting the change. Part of the name change process is disclosing your personal information, your criminal history, financial history, and reason for the name change. You’re required to disclose whether you’ve been convicted of certain offenses and whether creditors are attempting to collect from you to ensure that the name change is not sought to avoid present legal obligations. Additionally, while the reason requirement might seem scary, you don’t need to state anything other than that you’d prefer the name you’ve selected.
Part of the Texas name change process is securing a copy of your fingerprints. This is to run an FBI background check as part of your criminal history disclosure, as well as to verify your identity. There are multiple fingerprint services in Texas, though www.identogo.com is an easy, low-stress way to obtain your digital fingerprints at a reasonable price. Be sure to keep a copy of your cards with you.
Once the petition, order, and fingerprints are in order, your attorney will file the documents with the court. Depending on the county of filing, these fees can be well over $250. However, if you cannot afford court costs, our attorneys can help you file a waiver of fees or set up an installment plan with the court. After filing, the court will assign you a case number.
The final part of the process will differ depending on which county you’re in, but no matter where you live, you will need to attend the uncontested docket at your county’s courthouse. Your attorney can help you determine what the specific process will look like for you when the day comes. You’ll want to bring a copy of your petition and fingerprints in case the judge needs to review your paperwork, as well as the order to be signed which you’ll submit to the judge. The order will be submitted along with a request of electronic copy for yourself and your attorney. Once the judge calls your case, they’ll ask you a few more questions under oath to verify that your information is correct. Once the order is signed your name change is granted!
It’s important to note that while the order grants your name change immediately, you’ll need a certified copy of the order to have your name changed on the rest of your legal documents (driver’s license/identification card, social security card, etc.). Your name will not be automatically changed on documents, so it’s up to you to contact the relevant agencies to change your name elsewhere.
Changing Your Gender Marker
The process for changing your gender marker is nearly identical to changing your name. You’ll need to have your attorney draft a petition to change sex and gender identification, which has a similar disclosure requirement as the name change petition. The process for getting this granted is otherwise the same as the name change process. Additionally, you’ll want to organize any and all evidence you have that will support your request. This doesn’t need to be anything highly personal, and can include discussing your name change or any other processes that were part of your transition. In Travis County, for example, a written letter from your physician stating a diagnosis of Gender Dysphoria (or other relevant diagnosis), describing the treatment you have undergone for your diagnosis, and a recommendation that a gender marker change is in your best interest. Judges can be unpredictable in terms of what they’d like to see before granting such an order, so it’s important to be prepared to tell your story. Friends or significant others are welcome to come to the proceeding with you to show their support!
Like a name change, a court order granting a gender marker change takes effect immediately but doesn’t automatically change your gender marker on your legal documents. You’ll need to use the certified copy of the order to change or amend your passport, identification cards, and so on.
Changing your name and gender marker is a deeply personal process, and it’s more than understandable if you’re concerned about having to disclose your prior name or gender marker. By and large, you’ll only ever need to disclose this information if a background check is requested or you’re involved in further legal proceedings. It’s an unfortunate part of these processes, but rest easy knowing the information will be kept confidential. Further, you may be concerned about your name change being made public due to the nature of court proceedings. While court documents may be requested by most persons, the process is notably cumbersome and difficult for a non-attorney to navigate. If you’re afraid of filing a name or gender marker change due to concerns for your personal safety, please speak with your attorney to see what your options are. All consultations are strictly confidential, and we won’t file any documents or begin any legal proceedings without your approval.
Estate Planning
If you own a car, house, or any other substantial piece of property, it’s critical that you have a will so that your property is distributed per your wishes. Without a will, your property is distributed in accordance with the default intestacy plan, which likely doesn’t reflect your wishes. Wills are small documents that can have major consequences. If you’ve just changed your name and gender marker and want to draft a will, or need a new will to reflect your name and gender marker change, we’re here to help. We customize each will to the needs of the client, and have a more comprehensive post on what you can include in your will here.
Parental Rights
The trickiest part of LGBT law in Texas is parental rights. This is a topic that could consist of its own blog post due to its breadth and complexity. It’s important to note that in Texas, same-sex couples don’t receive the same parental presumptions described under the Texas Family Code. The Family Code presumes a child to belong to both parents if a cis-male husband and cis-female wife give birth to the child during their marriage. There is no such presumption for LGBT couples, and this gets even trickier if one parent has had their gender marker changed to reflect their identity. Second-Parent Adoption is used by many LGBT couples in order to ensure the both of them share equal parental rights with a child. This allows the child to have two legal parents, despite only having biological relation to one parent or being adopted by only one parent. You and your partner must be legally married in order to apply for a Second-Parent Adoption. Additionally, traditional adoption is available to LGBT couples as well. If you’re already married, this can, in some circumstances, prevent the need for a Second-Parent Adoption. These issues can be very complex and difficult, so it’s best to consult with legal professionals before attempting anything on your own.
Before starting any legal proceeding, it’s important to talk to an experienced attorney who understands the unique struggle faced by trans people. Every situation is unique, and due to the extremely personal nature of name changes, gender marker changes, estate planning, and parentage, you need attorneys you can trust. We offer a free 30 minute consultation to determine your needs. If you would like to schedule a consultation, please fill out the contact form on our website or give us a call at (512) 944-3329. Our phones are answered between 8:30 a.m. and 5:00 p.m. during the week.
Second-Parent Adoption in Texas
As mentioned in our Trans Rights & Texas Family Law post, Second-Parent Adoption is a tool utilized by LGBT couples in order to ensure that they have equal parental rights. Texas Law contains certain presumptions for parental rights, but these only apply to straight couples.
It’s critical that a second-parent adoption takes place despite the child living with both parents, or having a biological relationship to at least one parent. A second-parent adoption ensures both parents have the same specific legal rights regarding the child and thus protects the parental relationship. These rights are listed in Texas Family Code Section 153.371. This section might seem scary, given that it’s named “Nonparent Appointed as Joint Managing Conservator”, but rest assured that “nonparent” for this purpose refers to the non-biological parent of the child.
According to Texas Family Code Section 160.201, a parent-child relationship can be established only in a few very specific ways. Second-Parent Adoption is most utilized by lesbian couples, for reasons you’ll see below.
Female Parents
The mother-child relationship is established between a woman and child by:
1) the woman giving birth to the child;
2) an adjudication of the woman’s paternity; or
3) the adoption of the child by the woman.
Simply put, an “adjudication of parentage” is a court action instituted when it’s unclear who the parent of the child is. Genetic testing may be requested by a party, or ordered by the court. This doesn’t apply to LGBT couples very often, so the primary method for women in non-heterosexual relationships to establish parental rights is to either give birth to the child or go through a traditional or second-parent adoption.
For lesbian couples, one parent can become pregnant and give birth to the child (establishing biological maternity) while the other parent applies for a second-parent adoption. It’s notable that only the parent who gives birth is considered the legal mother. In the case of a genetic mother who donates her egg to a gestational mother, the gestational mother will be considered the legal mother. Such cases make second-parent adoptions absolutely critical to ensure both parents’ legal rights and relationship to the child are protected.
Additionally, both parents have the option of applying to adopt a child together. If one parent already has adopted a child, the other parent may apply for a stepparent adoption.
Male Parents
The father-child relationship is established between a man and child by:
1) an unrebutted presumption of paternity;
2) an acknowledgement of paternity by the man;
3) an adjudication of the man’s paternity;
4) adoption of the child by the man; or
5) the man consenting to assisted reproduction by his wife.
An unrebutted presumption of paternity doesn’t apply to gay or transgender men. Essentially, under Section 160.204, a man is presumed to be the father of the child under Section 160.201 if the man was married to the woman who gave birth to the child and the child was born during the marriage. For reasons mentioned above, an acknowledgement of paternity typically won’t come up in LGBT relationships, though it can still happen in certain circumstances. And naturally, a non-heterosexual man will not have a wife to consent to assisted reproduction with, so this doesn’t apply at all.
This leaves gay men with two options to establish a father-child relationship: acknowledgement of paternity, or an adoption. Acknowledgement of paternity applies only to couples who choose to use a surrogate. Sections 160.301 and 160.302 describe the acknowledgement of paternity process. It involves the mother of the child and the biological father of the child signing a document where the man acknowledges that he is the father of the child. And, as with any couple, both parents can apply to adopt a child together. If one parent already has adopted a child, the other parent may apply for a stepparent adoption.
The Second-Parent Adoption
After reading the above material, it’s clear to see why Second-Parent Adoptions are so crucial for LGBT parents. While the surrounding circumstances are different from standard adoptions, the legal process is identical. Like any legal process, the Second-Parent Adoption will take some time to complete. It usually takes a few months, though exact time estimates will depending on the individual case. However, this process is very clearly worth the wait.
What to Expect
There are a number of requirements that must be met in order for a child to be adopted in Texas. Some of these will be dependent on the nature of the adoption or your family. Your attorney will be able to walk you through each of them, though the biggest requirements are to submit to a criminal background check and home study.
In all adoptions, both parents will need to provide a criminal history report in accordance with Texas Family Code Section 162.0085 and Texas Government Code Section 411.128. Note that a criminal record doesn’t automatically destroy your chance of adoption. Whether your criminal record will have much of an effect will depend on the nature and severity of the offense. Just the same, a parent having a physical or mental condition won’t automatically disqualify them from adopting either. The adoption process is designed to look at each piece of your family individually and as a whole.
Texas law also requires that all adoptive parents participate in a home study conducted by a state official. These studies are designed to ensure that the child has or will have a loving home by examining the family history, financial situation of the parents, and conducting an in-home visit. The in-home visit can include an interview of both parents. The home study is one of the most important steps in the adoption process and can be nerve-wracking. However, it’s important to remember that no one has the “perfect home” or “perfect family”, and the goal of the adoption process is to ensure that the child is safe, loved, and happy.
While the process of a second-parent adoption may seem daunting, it’s an incredibly important tool for LGBT families to protect their rights to their children. This is not an easy process, but our attorneys are here to help you each step of the way. Call us at (512) 944-3329 or send us an email through this website to schedule a free consultation today.
