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I’m divorcing my same-sex spouse: Can I still see my kids?

In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that the constitutional right to marry extends to same-sex couples. This ruling applies to all fifty states and allows same-sex couples access to benefits equal to that of opposite-sex married couples. 

Although this landmark Supreme Court case didn’t explicitly describe the policies or procedures for dealing with same-sex divorce, the court ruling holds that judges should treat same-sex couples in the same manner as any other married couple. 

That being said, there may be challenges to pursuing child custody and visitation rights post-divorce in a same-sex marriage.

What to know about visitation rights in same-sex divorce

Unfortunately, the answer to the question of post-divorce visitation rights in a same-sex marriage is, it’s complicated. Each case will be different. Here are some of the things that the court may consider:

  • Is your spouse the child’s biological parent? What is your spouse’s position on the situation?
  • Have you established legal connections to your child? Are you listed on the child’s birth certificate as a parent or on the child’s adoption papers?
  • Have you been in the child’s life since they were born or adopted? At the time of the child’s birth or adoption, did your spouse regard you as the child’s other parent?
  • Have you bonded with the child and acted as their parent and caretaker over the years?

The court’s foremost guidance for the determination of visitation rights is what is in the best interest of the children, so that leaves you with a lot of room to make a case for custody or visitation rights. Discuss your legal options with someone familiar with Texas family law