Divorce and child custody issues for same-sex couples

HOUSTON, Texas – On June 24 of this year, the Supreme Court ruled that the Constitution guarantees a right to same-sex marriage. This was a long-sought victory for gay rights activists and there were celebrations across the country. However, one unforeseen bi-product of gay marriage rights is now coming to the forefront: divorce and custody battles in same-sex couples.

Attorney James Hedlesten, a partner at KHA Lawyers in Houston said that this will become a hot-button issue because there are so many different variations, each with its own ramifications. Before the Supreme Court ruling, there were complexities in legal cases when cohabiting same-sex couples would separate. “Previously, in some cases, when same-sex couples got married in different states and moved here, Texas did not recognize their marriage as a legal union,” Hedlesten said. “If the couple later broke up, they could simply move out and divide their property themselves.”

Now, in light of the Supreme Court’s decision, these couples are now required to file for divorce, or remain married. In other cases, parties were forced to remain married as the states that would allow them to marry in days with no residency requirements, required them to have residency and proper jurisdiction to get divorced. “For example – if a same-sex couple were in Massachusetts, but later, before the ruling, they moved to another state that didn’t recognize their marriage, like Texas – at least one of the parties would have had to move to Massachusetts for at least one calendar year to get proper jurisdiction and to have standing to file for divorce in Massachusetts – obviously a demand that was near impossible for most parties,” said Hedlesten.

In addition, there are a number of new developments to consider when the couple has children and are divorcing. “This opens up a Pandora’s Box,” said Hedlesten. “Each case will be different as to whether the child has been adopted by one or both of the partners, or if one of the partners is a biological parent. The question of the presumption as to a child ‘born’ during the marriage is still presumed to be the spouses’ child. Before, in an opposite-sex marriage and as the law is written, if the wife gives birth, the presumption was that the spouse was the child’s parent. Does this still apply? Take a lesbian couple that is married and that has children; will the presumption still apply with the mother that did not give birth, but that did not adopt? Will the ‘presumed’ parent still have standing?”

There are multiple possibilities and things to consider, according to Hedlesten, and the Supreme Court’s ruling – as profound as it may be – does not answer any of these questions that parties and courts now have to resolve. “For example, both spouses in a marriage are the presumed parents of any children born or adopted during the marriage. If the child was conceived through a surrogate, the non-biological parent may have no legal standing in a custody battle,” he said. “These are interesting issues that haven’t been tested. There is no precedent for cases like these yet. For attorneys that specialize in this field, such as myself, it will be an interesting challenge.”

Another factor to consider is same sex couples who have had wedding ceremonies without a marriage license or because they cohabited for a number of years and held themselves out as a married couple. They could now be in a legally binding, common law marriage in some situations. In such cases, if the couple were to separate, one side could file for divorce. “Another interesting question concerns couples who met the elements of a Texas Common Law Marriage, but separated from one another prior to the ruling from the Supreme Court,” said Hedlesten. “One side files for divorce based on the common law marriage statute in Texas. The question becomes whether or not is it retroactively applied for couples who are separated now but were in a common-law marriage prior to the ruling. In a case like this, one party in the marriage can sue for an equitable interest of any community property.”

Hedlesten stresses that it’s critically important to consult a skilled and knowledgeable attorney before making a decision or taking action relating to a divorce or custody suit. “You want someone who knows the law and who is ready to challenge the uncharted waters of same-sex marriage issues,” he said. “The laws change rapidly and new rulings are happening more and more frequently that are going to affect this area of law in a fairly rapid pace.”

For more information about James Hedlesten and KHA Law Firm’s efforts to identify and resolve critical family law issues, visit www.houstontexascpslawyer.com or www.khalawyers.com.