Who Gets the Kids When Domestic Partners Split?

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The number of custody disputes between people in a domestic partnership is on the rise. We encourage you to know your rights about domestic partners’ custody.

If you choose to forgo marriage, you’re far from alone these days. The courts are seeing more cases involving domestic partners who are ending relationships. Some domestic partnerships or civil unions may arise as an alternative to same-sex marriage in states where same-sex marriages are not recognized. Just like married couples, domestic partners buy property and have or adopt children together.

Image of a Domestic Partnership document and a gavel.
A domestic partnership is different from a common-law marriage. Photo by hafakot

Domestic partnership arrangements do not function as an alternative to marriage. In fact, many people worry that their relationship might be categorized as a common-law marriage or a civil union. You’ll need a domestic partnership agreement to keep things clear and formalize benefits between two parties. You can use this legal document to define your relationship as unmarried, thus avoiding legal entanglement when couples part ways. Check with your attorney whether your county formally recognizes domestic partnership agreements that you enter into.

However, there are some complex issues that can arise in a non-married relationship such as a domestic partnership when a couple separates.

Child Custody and Domestic Partnerships

In Texas, child custody in a domestic partnership is cut and dry. Your agreement for a partnership doesn’t establish paternity, custody, or child support for children.

If you had your child before entering the partnership, custody falls to you. The same is true for children that a couple adopted together. The only way to make both partners legal parents is for the other person to adopt the child. 

You’ll need to involve a judge if your domestic partnership is ending and neither parent is a legal guardian. If one of the parents did not legally adopt the child and wishes to retain custody, then you’ll need an expert to testify. That expert will advise the courts on what is in the best interests of the child when the court is reviewing the custody issues between domestic partners.

However, child custody can become one of the most complicated issues in separation if the other person is the legal parent and you want parental rights.

Who Gets Child Custody By Default In Domestic Partnerships?

For unmarried couples in domestic partnerships, Texas family law will assume that the mother automatically has legal and physical custody of a child from birth. This happens even if the father’s name is on the birth certificate.

Physical and legal custody are the two types of child custody. Having physical custody means that the child will reside with you while having legal custody means that you have the right to make important decisions regarding your child.

However, a father can establish parental rights over the child through a paternity action to gain some child custody rights. He can do this by:

  • Filing a legal form called the Acknowledgement of Paternity. Both parents sign this form to state that the man is indeed the biological parent of the child.
  • Filing a paternity lawsuit or Suit to Adjudicate Parentage in court. The man must take a DNA test to prove that he is the biological father of the child and both the mother and child may be swabbed for the test. If the ex-domestic partner is unwilling to cooperate with the DNA test, the man may need to ask the judge for a court order.

After paternity is established, the father will need another court order to establish child custody rights between domestic partners. This court order is necessary for the father to have any rights over the child. The court may then consider child custody issues in the same way as they would for a married couple.

You may want to consult a family law attorney to understand your options.

Why It’s Sometimes Important That Paternity Is Established

If courts do not recognize you as the legal parent of the child, you will not have the right to child custody or visitation. The legal parent can take the child and move to another county or state without your consent or telling you. They may also limit your visitation and you have no legal recourse.

You may have to go through the process of legally becoming a parent so that the courts will recognize your rights to visitation and custody. This will allow you to continue raising your child together with your ex-partner.

What If I’m Not The Biological Parent?

If you adopted the child, the state court will recognize you as a legal parent. However, there are cases where only one parent is recognized as the legal parent. Perhaps your ex-domestic partner may not have agreed to adoption or the child’s other biological parent is still in the picture. Many states will not recognize a parent-child relationship with a second parent who is a non-biological parent.

Unfortunately, this can also mean you have no way to get visitation and custody of the child. You may want to contact your lawyer to understand any options you may have.

Pet Custody and Domestic Partnership

Domestic partnership agreements are good for formalizing different types of benefits that would typically come with marriage. This includes shared health insurance. It can also allow for joint use of a home. But when it comes to pet custody, there aren’t protections with this type of legal framework.

No matter how much your pet might feel like a part of the family, in Texas, pets are considered property. In the event of a breakup, your furbaby will remain with his or her original owner. If both members of the partnership purchased your pet, then you will need to enter into some sharing agreement. However, the court may not always enforce sharing agreements, unlike the divorce orders in a typical divorce case after the end of a marriage.

It is best for you to sort out the ownership of pets and any other property with your partner. Then there will be no confusion if things end poorly and a couple separates.

Just remember, the rules of a partnership are different than a traditional divorce. The issues involved are very different from the context of traditional marriage. You’ll need help navigating this rocky landscape. 

Let us help you prepare your domestic partnership documents. Our experts at Sean Lynch law firm have decades of experience in family law. We offer consultations at our law firm. Contact us today for a no-cost case review.


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