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.
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.
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.