Getting Joint Custody in Same-Sex Divorces in Texas

 Posted on January 23, 2026 in Child Custody

Going through a divorce is hard for any couple, but same-sex parents face certain legal challenges that can make custody issues even more complicated. Data from some states shows that around one percent of same-sex couples nationwide end their marriages annually. 

Recent changes to Texas family law have made it harder for non-biological parents to keep their parental rights during a divorce. If you are starting a same-sex divorce in 2026, a Weatherford, TX family law attorney can help you understand your rights and protect your relationship with your child.

Why Is Custody More Complicated for Same-Sex Couples?

When a married heterosexual couple has a child, Texas law automatically assumes both spouses are legal parents. This does not always apply to same-sex couples. If one spouse is the biological parent and the other did not legally adopt the child or get a "parentage judgment" – a court ruling that says who a child’s legal parents are – only the biological parent may have legal rights under Texas Family Code Section 160.204. During a divorce, the non-biological parent might have no standing for custody or visitation.

How Did the 2025 Texas Law Changes Affect Things?

In September 2025, Texas made major changes to the Texas Family Code. These changes created new barriers for non-biological parents and family members.

The new law requires "exclusive care, control, and possession" of a child for at least six months to have "standing" for custody. This means that if the biological parent was present, i.e., living in the home with them, the non-biological parent no longer qualifies for custody.

Texas also removed the provision that allowed a non-biological parent to file for custody if their spouse died. Now, if a biological parent dies and the non-biological spouse did not adopt the child before the biological parent’s death, the non-biological spouse does not automatically have the right to fight for custody.

Any non-parent who files for custody must attach a written, sworn statement showing that denying them custody would significantly harm the child's health or development. Without this affidavit, courts must dismiss the case.

What Can Same-Sex Parents Do to Protect Their Custody Rights?

The best way to protect your parental rights is to take legal steps to establish parentage before a divorce happens.

Second-parent adoption is the most secure option. When you adopt your spouse's biological child, you become a legal parent with the same rights as the biological parent. This adoption remains valid even if you later divorce, and gives you the right to try for custody.

In some cases, a parentage judgment can set up legal parental rights without a full adoption. If you have not adopted your child, document your role as their parent. Keep records of medical appointments, school events, and financial support. While this cannot replace legal adoption, it can help your case later.

What Should I Do if I Am Already Going Through a Divorce?

If you are in the middle of a same-sex divorce and you never adopted your child, you need to act quickly. The new Texas laws make it much harder to establish parental rights after the fact, but you may still have options.

Work with a family law lawyer who understands the challenges same-sex parents face. Your lawyer can help you gather evidence, file the right documents, and present the strongest possible case. If you and your spouse can work together, you may be able to create a custody agreement that protects your relationship with your child.

Call a Parker County Child Custody Attorney Today

Same-sex parents deserve the same protections as any other parent, but Texas law does not always provide them automatically. The team at The Law Offices of Kary L. Key understands the specific legal challenges same-sex couples face in custody disputes. 

With over 25 years of experience in family law and certification as a Family Law Mediator since 2006, our attorney can help you protect your parental rights and fight for your relationship with your child. Contact our Weatherford family law lawyer today at 817-599-6969 to discuss your custody concerns.