Texas Adoptions by Same-Sex Couples

Texas adoption attorneys are occasionally faced with unique legal situations.  Although my law practice centers around adoptions and other family law cases in Bexar County, Texas, all adoptions in Texas are governed by the same body of law--the Texas Family Code.

In recent years, the issue of whether children may legally be adopted by same-sex couples in Texas and other states.  In 2005, Florida's ban against same-sex adoptions was upheld when the U.S. Supreme Court refused to listen a challenge of Florida's 30 year old ban against such adoptions.  What effect that will have on Texas adoptions and/or how Texas adoption attorney's will handle same-sex adoptions remains to be seen.

The court's action leaves in place a 2 to 1 ruling in 2004 by the Atlanta-based U.S. Court of Appeals for the 11th Circuit, which upheld the Florida law as a rational expression of the state legislature's view that households headed by married heterosexuals are best for children.

Like the Supreme Court's similar refusal to hear a challenge to the Massachusetts Supreme Judicial Court's ruling allowing same-sex marriage in that state, yesterday's decision is not a ruling on the merits of the issue and sets no precedent. But it may have signaled to many at the time the court's reluctance to move into a politically charged area at a time when its future membership was uncertain because of former Chief Justice William H. Rehnquist's bout with cancer -- and when the country was fresh from a bruising presidential election marked by a voter backlash against the prospect of more Massachusetts-style court rulings on same-sex marriage.

Be that as it may, same-sex adoptions in Texas are not illegal on the face of the Texas Family Code.  The relevant portion of the Texas Family Code, as it pertains to who may adopt a child, is contained in §162.001, which reads as follows:

§ 162.001. WHO MAY ADOPT AND BE ADOPTED. 
(a) Subject to the requirements for standing to sue in Chapter 102, an adult may
petition to adopt a child who may be adopted.

(b)  A child residing in this state may be adopted if:                        

(1)  the parent-child relationship as to each living
parent of the child has been terminated or a suit for termination is
joined with the suit for adoption; [or]

(2)  the parent whose rights have not been terminated
is presently the spouse of the petitioner and the proceeding is for
a stepparent adoption; [or]

(3)  the child is at least two years old, the
parent-child relationship has been terminated with respect to one
parent, the person seeking the adoption has been a managing
conservator or has had actual care, possession, and control of the
child for a period of six months preceding the adoption or is the
child's former stepparent, and the nonterminated parent consents to
the adoption;  or

(4)  the child is at least two years old, the
parent-child relationship has been terminated with respect to one
parent, and the person seeking the adoption is the child's former
stepparent and has been a managing conservator or has had actual
care, possession, and control of the child for a period of one year
preceding the adoption.

162.001(b)(3) clearly states that a child may be adopted by a person who has had actual care, possession and control of the child for at least six months, provided the child is at least 2 years old at the time the petition for adoption is filed.  Clearly, that provision allows an unmarried man and woman to
adopt a child when one of them is the biological parent of the child.  Less clear is whether the law was intended to facilitate Texas adoptions by same-sex couples.  Also clear is the fact that a Texas birth certificate cannot name two parents of the same sex, even if they have been established as the child's parents through a legal Texas adoption.

To date, I am not aware of any Texas appellate cases which have definitively answered the question, so the issue of whether adoptions by same-sex couples in Texas are allowed is still up for grabs. 

San Antonio divorce and family-law attorney J. Michael Clay focuses exclusively on family-law issues such as divorce, child support, child custody, child-support modification, child-custody modification, child-support enforcement, child-custody enforcement, spousal maintenance (including enforcement and modification), wage withholding, adoption and termination issues.  J. Michael Clay is licensed to practice all types of law in the state of Texas, including federal district courts in the Western District of Texas, San Antonio Division.  He is not certified by the State Board of Legal Specialization to practice in any particular area.

The material in this article is not intended as legal advice, and should not be construed as such.  The intention of the article and others like it in this blog is to discuss common legal issues in Texas family law cases and how Texas law applies to them.  Any statements regarding the state of the law and how it applies to particular situations is simply the opinion of the author, and should never be relied upon in place of the advice of a retained attorney.