Attorney Suzanne Bryant warns that just because marriage laws have changed doesn’t mean a second parent has additional rights
With marriage equality now established law, LGBT couples might expect that parental rights are automatically granted.
But that simply isn’t the case.
“Being married and being a parent are totally separate issues,” says Austin attorney Suzanne Bryant.
Bryant has experience with both. She and her wife, Sarah Goodfriend, have two adopted children, and she’s made second-parent adoptions the specialty of her practice.
When she and Goodfriend sued Texas for the right to marry and won on medical grounds in February, they became the first same-sex couple to marry in the state — before the Supreme Court officially weighed in on the issue. Now that marriage law has changed to allow any couple to marry, Bryant cautions that adoption law hasn’t changed — yet. And she warns that when dealing with your kids, you don’t want to be the test case.
While second-parent adoptions are legal in Texas, the second parent’s name still won’t go on the birth certificate if the parents are a same-sex couple. The adoption by the second parent must still be filed separately from the original adoption.
“Anyone who thinks marriage makes them a legal parent is wrong, wrong, wrong,” Bryant says.
When a married opposite-sex couple has a baby, the husband is presumed to be the father, and his name is placed on the birth certificate. That’s called a “rebuttable presumption,” but the burden of proof is on the father to disprove his relationship. But there’s nothing in Texas law that presumes the second parent if a woman who gives birth is married to another woman.
In 1996, the Texas legislature changed a law regarding birth certificates. That document allows only one man’s name and one woman’s name to appear as the parents. Bryant said before that, a same-sex couple’s name could be included.
Rep. Rafael Anchia has been trying to change the law, but his bill has languished in committee each session.
While marriage does afford a couple a number of rights that aren’t offered to unmarried couples, rights and responsibilities regarding a spouse’s children aren’t among them unless formal legal steps have been taken. Bryant says family court judges understand that children are better off with two parents.
Two parents give children access to insurance through either parent. The death of one parent doesn’t leave the child an orphan. Survivor benefits are available if either parent dies and child support may be ordered if the couple splits.
Those are just some of the concrete benefits. The emotional support, balance and stability gained from having two parents are immeasurable, Bryant says.
Although judges understand the benefits of second-parent adoptions, judges in just three Texas counties — Dallas, Bexar and Travis — regularly grant second-parent petitions to same-sex couples.
Bryant thinks judges in counties like Tarrant and Harris clearly understand the benefits of children having a second parent. She believes some judges in more conservative areas are simply more worried about their re-election chances and questioned the integrity of judges who put their re-election above what’s best for a child. Public opinion should impact these cases since adoption proceedings are held privately and court records are sealed.
Adoption cases are private because many involve a pregnant teen, an abusive father or birth parents who don’t want their identities known. The circumstances of most adoptions are not something anyone would normally want the media to have access to report.
Last summer, Dallas Voice reported the story of a Plano couple whose adoption was denied by a Tarrant County family court judge, because the couple went to the media after their petition was denied. Bryant called them lucky, because they were able to refile elsewhere, and the adoption was completed.
She handled a case after a Harris County judge not only denied a second-parent adoption by a gay couple, but refused to dismiss the case. The child’s status was left in limbo.
“The judge retired, and they came to me with a 5-year-old,” she says.
After the Harris County judge left the bench, the case was finally dismissed, and Bryant refiled it in Travis County, where it was promptly approved.
While Houston and Fort Worth judges are terrible about approving second-parent adoptions, Bryant has heard of couples having luck in suburbs and small towns around Texas. Local attorneys report luck in some courts in Kaufman and McKinney, for example.
“Sometimes in small towns where judges and attorneys know each other, it’s done quietly,” she says.
She suggests going to an attorney who may be LGBT-friendly and is well connected in town.
“Talk to people in your community and don’t be a test case,” Bryant says. Anyone trying to test the limits in their community should work with a national organization like Lambda Legal or the National Center for Lesbian Rights who have experienced attorneys who can consult on the case.
Bryant recommends attorneys continue to file their second-parent adoptions in courts friendly to same-sex parents. Judges will usually waive jurisdiction to take cases from anywhere in the state.
But she’d like to expand the number of judges who will hear those cases impartially. She’s invited judges to lunch to chat about the subject and plans to continue to do that.
“If there’s no pending case in that court, I can make an appointment to address the issue,” she says.
While the marriage-equality ruling doesn’t directly change adoption law, judges know they’re rulings against same-sex couples are more likely to be overturned on appeal. Bryant thinks this is the perfect opportunity for attorneys like her to address second-parent adoptions with family court judges across the state.
This article appeared in the Dallas Voice print edition July 24, 2015.