Custody rights in limbo following same-sex marriage ruling

Decision declaring same-sex marriage ban “unconstitutional” stayed

A recent case that has been making a lot of headlines has shown some of the potential problems that can arise when different states have very different laws surrounding same-sex marriage and custody rights. According to Texas Public Radio, a same-sex couple who were married in the District of Columbia, where same-sex marriages are legally recognized, filed for divorce and joint custody of their child in Texas, where such marriages are not recognized. The case has led to a highly fraught series of cases.

Same-sex marriage ban

One of the spouses in this case was seeking the divorce and joint custody of the couple’s child, who was delivered by the other spouse via artificial insemination. The spouse seeking the divorce was not the child’s biological parent, but would have otherwise been recognized as the parent in D.C.

The other spouse, however, argued that because Texas does not recognize same-sex marriages, that the divorce case and joint custody petition should not be heard by the courts. In a recent decision, a 438th district court judge hearing the case decided that the couple could file for divorce because Texas’ ban on same-sex marriage was “unconstitutional.”

According to Texas Lawyer, the judge determined that the Texas ban violated the couple’s right to due process and the equal protection clause. The judge referenced a similar ruling by a U.S. District Judge of the Western District of Texas that found that because Texas recognizes opposite-sex marriages from other states, not recognizing legally married same-sex couples is a violation of the equal protection clause. However, it should be pointed out that the case referenced by the judge is itself currently being appealed.

The judge also claimed that by granting a presumption of parenthood to the husbands of birth mothers, but then denying that same presumption to wives of birth mothers was another violation of the equal protection clause.

Judgment stayed by AG

The judge’s ruling, however, may mean little for the couple and child involved in this case. Soon after it was delivered, Attorney General Gregg Abbott requested that the Fourth Appellate Court stay the judgment, a request that was granted. The Attorney General argued that the judge had overstepped her authority.

It is now up to that court to determine whether the judge had the authority to declare such a ban on same-sex marriage unconstitutional. Until then, the custody of the child in this case remains in limbo.

Settling child custody disputes

While the above case may not be common for most Texas families, it nonetheless highlights how contentious a child custody dispute can become for anyone. For both same-sex and opposite-sex couples, determining custody arrangements of a child is likely to be the most difficult part of a separation. Anybody seeking custody of a child should consult with an experienced family law lawyer who can inform the parent of what legal rights and options may be available.