Gay Rights and Child Custody

The push for gay rights has created a number of legal issues, from paternity to probate, and same-sex child-custody fights are no exception.

Valerie Wigglesworth of the Dallas Morning News reports that people who had children in heterosexual marriages and who are now in homosexual relationships are discovering that their inability to legally marry their same-sex partners can wreak havoc on child-custody arrangements.

A “morality clause,” commonly found in divorce decrees, prohibits an unmarried parent from having romantic or sexual partners spend the night while the children are in that parent’s care.  As Wigglesworth explains:

A man and a woman in a serious relationship can marry to get out from under the legal provision. But same-sex couples don’t have that option in Texas, where such marriages aren’t recognized.

Carolyn Compton had been married to Joshua Compton for 11 years before their split. In a hearing earlier this month, District Judge John Roach Jr. enforced the terms spelled out in the Comptons’ divorce, ordering Carolyn’s partner, Page Price, to move out of the home they shared with the Comptons’ two daughters, ages 10 and 13.

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The clause banning overnight stays is typical in divorces, especially when extramarital affairs are involved. The idea is to protect children from exposure to such relationships as their parents go through a divorce.

In Collin County, the clause is part of the standing orders that apply to every divorce case filed. The clause, which defines overnight as being from 10 p.m. to 7 a.m., remains in force while the divorce is pending. Denton County has a similar provision as do a lot of other Texas counties. Dallas County does not include a morality clause in its standing orders.

In the case of the Comptons’ divorce, the clause was also added to their final divorce decree. It has no expiration date.

“Unless she’s willing to make a very long, very public fight, she’s got a problem,” San Antonio family law attorney Amber Liddell Alwais said.

Bexar County, where she practices, included the morality clause in its standing orders that went into effect May 1.

No appeal has yet been filed in the Compton case, but it is almost certain that the constitutionality of these morals clauses will eventually be challenged on equal-protection grounds (unless the Texas Legislature legalizes same-sex marriage).  While the clause applies equally to both heterosexual and homosexual exes, it arguably has a disproportionate impact on same-sex parents due to their inability to have a marriage legally recognized in Texas.

For your legal questions on same-sex relationships, be sure to start with O’Connor’s Texas Family Law Handbook 2013.  It discusses the statutory and case law on the prohibition against same-sex marriage (including out-of-state, informal and putative marriages), the determination of a parent’s sex, and the enforceability of cohabitation agreements.