A married couple who are of the same sex were legally married in the District of Columbia in 2010. They then moved to Texas. This state does not recognize same-sex marriages. They had a child together through artificial insemination and shortly after the birth of their child, the marriage took a turn for the worse. One woman filed for divorce and for joint custody in the state of Texas.
In another state that recognizes same-sex unions, this would not have been a problem. However, in Texas, the issue of determining custody or what is in the best interest of the child in a divorce can be confusing enough without a same-sex marriage. One of the parents tried to use this state of affairs to her advantage by saying that the court didn’t have the right to determine for a divorce of for custody.
A Texas judge made a decision to declare that Texas could not ban marriage equality based on sex. The judge said that discrimination based on marriage unduly imposes additional burdens on the children of same-sex marriages. The best interests of the children need to be served and the best way for that to happen, according to the judge, is to declare the marriages constitutional in Texas so that child custody issues can be settled.
This issue has not seen its end yet. Other courts and judges in Texas are likely to overturn this decision due to the conservative make-up of the Supreme Court in that state. Two days after the decision was handed down, an appeals court put a stay on the ruling at the request of the state’s attorney general.
The Supreme Court of the United States does not share this viewpoint at all. One Supreme Court justice has intimated that he is sympathetic to the plight of those children who are involved in a custody battle with same-sex parents.
No matter if your union is same-sex or more traditional, divorce is always difficult. You may want to contact a professional who has your best interests in mind if you are considering a divorce.
Source: Think Progress, “The bizarre divorce case that led a judge to declare Texas’ same-sex marriage ban unconstitutional” Ian Millhiser, Apr. 28, 2014