Texas Divorce Attorney Blog
Texas family law was written before marriage between same-sex partners was recognized. Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex. A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.
The appellant had a child at the time of the marriage and the parties discussed having a child together. A friend of the parties agreed to be their sperm donor. They agreed the appellee would carry the child. According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment. The appellant accompanied the appellee to most of her doctor’s appointments. She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.
The appellant argued “parents” are defined as a mother and father in the Texas Family Code. The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.
The appellant argued the trial court erred in holding she was a parent ordering her to pay child support. The Texas Family Code defines parent as “the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father.” Tex. Fam. Code Ann. § 101.024. A mother-child relationship may be established by giving birth, adoption, or an adjudication of maternity. Tex. Fam. Code § 160.201. Under the law, a man who is married to the mother of a child born during the marriage is presumed to be the child’s father. Tex. Fam. Code § 160.204. Another statute states the provisions relating to paternity determination also apply to determination of maternity. Tex. Fam. Code § 160.106.
The appellant argued she was not biologically related to the child and that she was not recognized as a parent under the Texas Family Code. The appellant pointed to a case that held the sperm donor in an artificial insemination not performed by a physician may be named as the child’s father. The appeals court found that case did not apply here, however, because the sperm donor did not seek to be and was not named the child’s father.
The appeals court noted that the parties to the case did not fit within the gendered definitions provided in the Texas Family Code. The appellant would be a presumed father due to her marriage to the child’s mother at the time of conception and birth if gender were not an issue.
Texas has adopted the Uniform Parentage Act and portions of the Texas Family Code are based upon it. The appeals court therefore looked to how other states who adopted the Uniform Parentage Act address the issue. Other states have applied the marital presumption to women married to the birth mother of a child born during the marriage.
The appeals court noted it presumes the legislature intends to comply with the state and federal constitutions when it enacts laws. The appeals court found that it had to give effect to the ancillary benefits of same-sex marriage under U.S. Supreme Court precedent.
The appeals court noted that it is Texas’s policy that “all children deserved to be supported by their parents.” The appeals court also pointed out that the equal protection clause guarantees marriage and full recognition of its ancillary rights to same-sex partners. The trial court had treated the parties like any other married couple and therefore did not abuse its discretion. The appeals court affirmed the trial court’s judgment.
The appeals court noted that the parties “both embraced that child as their own.” The appellee testified the appellant was an intended parent. According to the appellant’s own testimony, she participated in the insemination, pregnancy, birth, and child care. The appeals court was not then willing to allow her avoid the legal responsibilities of parenthood just because the marriage was between same-sex partners.
Although some issues related to same-sex marriage and remain unsettled in the law, the experienced Texas divorce attorneys at McClure Law Group have a deep understanding of Texas family law and can help guide you through the divorce process. Call us at 214-692-8200 to set up a consultation to discuss your case.