State Laws and Legislation

Texas Custody and Visitation Law

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Texas courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation.

Texas law states: “In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest. The following factors should be considered by the court, the department and other authorized agencies in determining whether the child’s parents are willing and able to provide the child with a safe environment: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological or developmental evaluations of the child, the child’s parents, other family members or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. …

“An original suit may be filed at any time by: … a person, other than a foster parent, who has had actual care, control and possession of the child for at least six months, ending not more than 90 days preceding the date of the filing of the petition; … a person with whom the child and the child’s guardian, managing conservator or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator or parent is deceased at the time of the filing of the petition. …

“The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”

In a 2003 case, Jenkins v. Jenkins, a Texas appellate court ruled that a gay father’s previously granted extensive visitation was an abuse of the trial court’s discretion because it was not in the best interest of the children. One of the reasons that the appellate court cited was that the father disregarded the recommendations of a court-appointed psychologist that he not have overnight guests by allowing the father’s male “paramour” to move in and involving him in the children’s activities such as dance recitals and school lunches.

Custody and Visitation for Transgender Parents
There are no reported or published opinions dealing with transgender parents.

Custody and Visitation for Same-Sex Co-Parents
Although the courts state that a same-sex co-parent could petition to be considered in loco parentis, it seems unlikely that a co-parent could meet the criteria put forth by the court.

In 2003, a Texas appellate court ruled in Coons Andersen v. Andersen that the co-parent of a child had no standing to petition the court for visitation. The woman had co-parented the child for 18 months with her former same-sex partner. The court held that the non-birth mother did not meet any of the three possibilities for how a person may be able to claim in loco parentis status. The court stated that, while the non-birth mother and her partner were living together, the non-birth mother did not have “actual care and control of the child” because the biological mother was also caring for the child. The court furthered this, saying, “The in loco parentis relationship arises when a non-parent assumes the duties and responsibilities of a parent, and normally occurs when the parent is unable or unwilling to care for the child.” Additionally, the “occasional visitation” she had with the child after she and her partner separated was not enough to signify in loco parentis status. Finally, because the non-birth mother was no longer living with the child after their separation, the common law relationship had ended for the purposes of being recognized as having in loco parentis status.

Citations: Tex. Fam. Code § 263.307; Tex. Fam. Code § 102.003; Tex. Fam. Code § 153.001; Jenkins v. Jenkins, 2001 Tex. App. LEXIS 3116 (Tex. App. Div. 2003); Coons-Andersen v. Andersen, 104 S.W.3d 630 (Tex. Civ. App. 2003).

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Updated: Tue, October 12, 2004 - 11:00:50