Parents’ Rights in a Non-Traditional Marriage
Modern families are taking revolutionary shapes, and the law is trying to catch up. With the passing of the Supreme Court decision to allow same-sex marriage in 2015, the question of parenthood has become more interesting. Family law, rooted in its hundreds of years of traditional, man-and-woman marriage, is shifting to accommodate new paradigms.
But even beyond the issue of same-sex marriage and parenting, families aren’t always the clear-cut, nuclear model of the 1950s. Divorces, non-monogamous relationships, infidelities – any number of circumstances can create a molecule-shaped chart of adult-to-child relationships.
What are some options for parents in a modern family dynamic? Who can be legally recognized as a parent? What are the rights of the adults involved?
When the Biological Parents Aren’t Married
When a woman in the state of Texas is married and has a child, her husband is considered the legal father of that child. It doesn’t matter if he’s the biological father or not. If the biological father wants to be recognized as the father, he must establish paternity. The non-biological, legal father will be a part of this process.
Filing for Paternity
When parents are in agreement about who is the biological father and want to establish paternity, they need to file an Acknowledgement of Paternity form. It’s not a form that can just be filed and sent. There is a process to be followed. Parents need to schedule time with an AOP-certified entity to go through all the steps.
For now, the biological father’s marriage shouldn’t alter this process. This means that, regardless of the father’s spouse being a man or a woman, the Acknowledgement of Paternity process will remain the same.
In Texas, minors may file an AOP without an adult’s consent. If this filing was in error or in bad faith, the father in question needs to file a Rescission of the Acknowledgment form within 60 days or by the date of a paternity hearing.
Because the question of maternity is cut-and-dry – there is no confusion as to who is the biological mother – all birth mothers have complete legal and parental rights to their children. There are no legal processes to “establish maternity.” Even in surrogacy, there are murky legal loopholes that could allow a woman to keep the baby. A woman loses her legal parental status only by giving up her child for adoption.
Currently, Texas doesn’t grant immediate rights to a new mother’s same-sex spouse. If Sarah has a baby while married to Jennifer, Jennifer will be recognized only as a stepparent.
If a stepparent wants to become a child’s legal parent, they are going to need to legally adopt the child. If one spouse already has legal parenthood over a child, the other spouse is a stepparent in the eyes of the law. They will have to go through the stepparent adoption process the same as any heterosexual couple.
Stepparents do not have much legal claim to parenthood over a child unless they adopt. The stepparent’s spouse (the child’s legal parent) needs to join the stepparent as a petitioner, and they must then go through the adoption process together.
Before the Supreme Court legalized same-sex marriages, same-sex couples had to adopt individually. They had to file for the adoption separately, and they were each put through the scrutiny of the adoption process as individuals. With the legal recognition of same-sex marriage, that has changed. A married couple – regardless of sex – can adopt as a married couple.
If the same-sex couple is unmarried, Texas still honors their original plan for same-sex adoption. The non-legal parent must file for adoption individually and go through the process alone.
Non-Monogamy in Texas
Culturally, there are more and more people experimenting with non-monogamous relationships, even to the point of outside relationships being deeply committed (sometimes known as “polyamory”). Texas has no say on who someone dates, whether or not a spouse approves, or even if it is moral to enter into such an arrangement. What Texas will not tolerate, however, is any form of bigamy, polygamy, or polyandry.
Bigamy is defined as being married to more than one person. Even if it happens by accident, someone assumed their prior marriage had been dissolved when it hadn’t, it’s still against the law. Texas also frowns upon a married person’s living with another partner or any other arrangement that looks like an outside, common-law marriage.
If someone takes the plunge and attempts this lifestyle, they need to go into the situation with open eyes. A non-relative outside of the marriage, especially if they are romantically involved with one of the parents, is almost never going to have any legal connection to the children of that marriage. Even if the parents are killed in a horrible accident, the courts are likely going to look for aunts, uncles, or grandparents before ever considering the parent’s other “significant other.”
While there is still some progress to be made, there are systems in place to cover parenting in most non-traditional relationship configurations. Same-sex marriages, in particular, have much more legal equality in the eyes of the law.
If you have question about your legal rights as a parent, we are here to help. Consultations are free and there’s no risk involved, so call today at (713) 903-8112 or contact us online.