Presumption of MATERNITY in Texas?

Texas Family Code 160.106 Presumption of Maternity

Texas Family Code 160.106 Presumption of Maternity

Did you know that the presumptions of paternity apply also to presumptions of maternity? Little known Texas Family Code section 160.106 says that the provision of Chapter 160 relating to the determination of paternity apply to a determination of maternity. In looking at the provisions related to paternity, the presumption of parentage would apply to a child born during a marriage, to a parent who signs an acknowledgment of parentage, or to persons voluntarily named as a parent on a child’s birth certificate. What about in 160.202 (5) where paternity is presumed for a man who, during the first 2 years of a child’s life, resides in the household with the child and represented to others that the child was his own — does that paternity presumption apply also to maternity? According to 160.106 it does. This is one of the sticky situations that may come with the recognition of same-sex marriages in Texas involves the parental presumptions that will arise with children of such relationships. Take a lesbian couple where one mother decides to give birth to a child during the marriage.  Once Texas recognizes those marriages, the non-biological partner could claim a presumption of maternity by virtue of being married at the time of the birth. Or, even if the couple were not married, but lived together during the first 2 years of the child’s life and represented to others that they were both mothers, a presumption of parentage could apply. This statute is part of the Uniform Parentage Act which was also adopted by California. There, the case In re D.S. actually finds that the presumption of maternity code section was designed to provide an avenue for presumed parentage for same-sex couples:

“[I]n the context of same-sex relationships involving two women, courts have found a child may have a biological mother and a presumed mother, to the extent the woman who is the nonbiological [or nonadoptive] parent meets the requirements of one or more of the presumptions listed in section 7611.” (In re Bryan D. (2011) 199 Cal.App.4th 127, 138–139; see, e.g., S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 [upholding application of section 7611, subdivision (d) to give parental rights to a former partner in a same-sex relationship who had received the adoptive mother’s children into her home and held them out as her own].)

See In re D.S. at There are some courts and some judges in Texas — and maybe even some lawyers — that will be shocked to see that Texas already has statutes that contemplate rights for same-sex couples. Some parts of this chapter already apply, even without recognition of same-sex marriage. That’s why it is so important to talk to a lawyer who knows about the intricate rights of same-sex couples and can advise accordingly.

What divorce custody arrangement is best for the kids?

The Texas Standard Possession Order

In Texas, we have the Standard Possession Schedule, passed down to us by our Austin parenting experts, the Texas Legislature. It generally provides for the “non-primary” parent to have possession of the children alternating weekends, some summer time, and split the holidays. So, the child lives primarily with one parent and “visits” (yes, we still use that word in Texas divorces) with the other parent. Studies show this arrangement may not be the best thing for kids who are unwittingly subject to the parents’ divorce.

A new study published in the Journal of Epidemiology & Community Health (Fifty Moves a Year: Is there an association between joint physical custody and psychosomatic problems in children?) suggests that children are mentally healthiest when they are able to split their time with both divorced parents. Children who lived primarily with one parent had higher rates of sleep problems, difficulty concentrating, loss of appetite, headaches, tension, and sadness. On the other hand, children who lived for periods of time with both parents reported significantly fewer problems.

So, stability in housing was less of a factor for these children than the stability of their relationships with both parents.

The study also emphasized that kids become the most stressed out by the level of angry fighting between parents. It is not the parental separation or the divorce itself that causes kids stress. It’s the conflict and how the parents manage the conflict.

NOTE: The Texas Legislature has pending before it currently a HB 2363 that proposes to make “equal time” the standard in Texas instead of the Standard Possession Schedule. This bill remains in committee, so it seems unlikely that it will make it through before the end of the month, but it is one to watch.

Hat tip to Beth Greenfield’s article on Yahoo The Divorce Custody Arrangement that Benefits Kids the Most.

Tribute to Judge James Martin, presiding Dallas family court judge

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

Judge James Martin, 254th District Court and Presiding Judge of Dallas County Family Courts

On Sunday, April 19, 2015, the Dallas Family Courts lost one of their own. Presiding Judge James Martin lost his battle with lymphoma, leaving behind a legacy of advocacy for children. Judge Martin was elected to the Dallas Family Court bench in 2010, almost immediately garnering the respect and admiration of attorneys and litigants alike. He was reelected in 2014. Despite his illness, Judge Martin remained active on the bench until about a month ago, when he took a turn for the worse.

You can read the Dallas Morning News’ article about Judge Martin here:

Judge Martin’s passing leaves the 254th bench open at this time. Former Judge Carmen Rivera-Worley is sitting as a visiting judge until the seat is filled.  The seat will be most likely filled by Governor Greg Abbott by appointment, which is expected during the summer. Then, a special election will be held in the next cycle (2016) to fill the unexpired term. The winner of that election will sit for reelection in 2018 as well.


Historic day for marriage equality

Justices_smI believe that we will look back on today’s arguments before the US Supreme Court as one of the landmark historic days for civil rights in of our time. Today, the Court will hear arguments in the case named Obergefell v. Hodges — the combined six cases pending on various aspects of the marriage equality questions. Arguments will center around two primary questions.  One, whether it is unconstitutional for states to ban same-sex marriage, or stated another way, whether there is a constitutional right to marry by same-sex couples that overrides the states that wish to ban such marriages. Then, if there is not a constitutional-level right to marry and states may pass laws banning such marriages if they choose, then must states recognize marriages lawfully performed in other states that do recognize same-sex marriage?

Speculation will abound today about what might happen. Lawyers and media folks will look for clues in the questions asked during the argument, the tone of voice, pregnant pauses, and even questions not asked — maybe something will signal the outcome. Of course, none of that is reliable or even predictive of the actual outcome. Yet, we almost can’t help but speculate.

Windsor case signals outcome

The Windsor case from two years ago gives some clues as to the possible outcome. In that case, the US Supreme Court held section three of the federal Defense of Marriage Act unconstitutional, thus extending federal benefits to same-sex couples. The Court extended the Constitutional Due Process of equal protection to same sex couples in handing down this ruling. That part of Windsor is what signals clues to the ruling in today’s Obergefell case. The same arguments for equal protection in Windsor should apply to Obergefell and apply to strike down the state bans on same-sex marriage.

Justices leanings signals outcome

Another signal as to the likely outcome of the Obergefell case is the split of the Justices from Windsor and the known or usual leanings of those Justices.  Typically, Justices Ginsberg, Breyer, Sotomayor, and Kagan lean to the liberal side and are expected to hold the marriage bans unconstitutional (so, yes and yes to the questions presented). On the other side, Justices Scalia, Thomas, and Alito are the conservatives and are expected to vote as they did in Windsor, upholding state’s rights to pass laws banning same-sex marriage without acknowledging the laws of states that recognize same-sex marriages (so, no and no to the questions presented).

Justices Kennedy and Roberts are the crucial swing votes in this case who will actually decide how the case comes out. Justice Kennedy, the Court’s most moderate Justice, voted with the liberal wing in Windsor and authored the majority’s opinion.  Kennedy wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” Justice Kennedy’s legacy will show his favor for gay rights starting as early as 1996 when he wrote the Court’s opinion in Romer v. Evans invalidating a Colorado law against homosexual rights. He also authored the Court’s opinion in this historic Lawrence v. Texas case, which extended Due Process to homosexual people and banned laws criminalizing homosexual conduct. However, Justice Kennedy is also a state’s rights advocate. So, here, where state’s rights to pass laws is at direct odds with the Due Process rights of same-sex couples, Justice Kennedy could be conflicted. This may be the reason the questions are presented in two-parts, where an affirmative answer to the second question compromises the ability to acknowledge state’s rights but also the rights of same-sex couples.

Justice Roberts’ vote may also be on the table in Obergefell. In Windsor, Justice Roberts refused to sign off on the dissenting opinion and wrote his own dissent. He did not go so far as to agree with the conservative wing on the breadth of state’s rights, and seemed to leave a window open for the Constitution to trump state’s rights given the right set of facts before the Court. As Chief Justice, this Court will bear his name — known in history as the “Roberts Court”. So, his namesake and legacy will be known, at least in part, for this landmark decision. With the tide of public opinion so overwhelmingly changing on the issue of marriage equality, many doubt that Justice Roberts will want history to mark him as opposed to marriage equality, which may sway him to vote with the majority. On the other hand, as a state’s rights advocate, he may not go so far as to find a Constitutional deprivation of Due Process sufficient to override the state’s rights to pass laws. So, question two, requiring acknowledgement of other state’s lawful marriages — in other words, granting full faith and credit under the Constitution to lawful marriages — could be his compromise.


The ruling on Obergefell is expected in late June, but before the end of the US Supreme Court’s term.

Admission of text messages into evidence, predicate

Divorce text message

Text messages are becoming a more frequent piece of evidence in Texas divorce cases. Dallas family lawyers and those around the state must offer a predicate to authenticate a text message before it will be accepted into evidence. This means the document must be shown to be the actual (or copy) document and not be altered. It must also be shown to be an exception to the hearsay rule which prohibits out of court statements being offered in court as the truth.

The Texas Court of Criminal Appeals today announced a ruling regarding the proper predicate for admission of text messages. Butler v. State opinion is here.

In that case, certain text messages from the defendant to the victim were offered by the State to show threats of retaliation for reporting the crime. The State laid the following predicate:

Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the

same exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had

even called in between the conversations talking mess.

The Texas Court of Criminal Appeals, the highest criminal court in Texas, points to a liberal standard for showing a document is authentic. Specifically, to be authentic, the proponent must show that the document is what the proponent claims it to be. The Court says it isn’t enough to show as a predicate for admission of a text message that it is sent from the cell phone of a particular person — because “cell phones may be purloined” by another. However, the proponent of the evidence may use direct or circumstantial evidence to say that the person was the sender, even based on the content or inference of the message.

So how did the victim in Butler know the texts were from him? Because he texted her from that number, the content of the conversation inferred it was him, and he called in the middle of the texts, talking “mess”. So, the distinctive characteristics of the conversation showed it was Butler. The Court of Criminal Appeals held that the predicate laid was sufficient to allow the jury to find the document authentic, so admission of the evidence was proper.

Preserve Error and Don’t Get Sued

I was fortunate enough to be asked to give a TED-style talk at a lawyer education seminar about preservation of error.  Here’s the link to the podcast of the presentation:

I really enjoyed the TED-style talk and hope these catch on across the lawyer education forum.

Texas Divorce Statistics January 2015

This from the Office of Court Administration, divorce filings in Texas account for 89% of all cases filed in the District Courts. In the fiscal year 2014, there were 111,409 divorces filed in Texas district courts out of a total of 125,588. Overall, the divorce rate per 1,000 people was 4.7 (meaning 4 or 5 people out of 1,000 got divorced in 2014). This statistic is down 30% over 1995 statistics, which showed 6.7 out of 1,000 people got divorced.

The Office of Court Administration is doing some good work with the memes on various court-related statistics.  See more at their website.

Texas divorce statistics 2014

Same Sex Marriage in Texas… Yes, Then No

Last week was a crazy time in Texas for proponents of same sex marriage.  Here’s a timeline of the events that occurred last week:

  • On Tuesday morning, a probate judge in Travis County declared the Texas definition of marriage unconstitutional in a private probate proceeding.

probate court order

So, as of now, two ladies in a same sex got legally married in Travis County. The LGBT advocates rejoiced. AG Paxton filed to invalidate their marriage. The Texas Supreme Court pushed the pause button and said WHOA wait a minute here… let’s sort this out. And, everyone remains in limbo. STAY TUNED!

Michelle O’Neil authority on Texas’ same sex marriage rulings

I participated in several media interviews pertaining to the events between Tuesday Feburary 17 and Thursday February 19, 2015 on Texas first legal same sex marriage between a lesbian couple in Travis County, Texas. Here are the links to my interviews that aired on Tuesday, Thursday and Friday:

Channel 11 Probate Judge Rules Texas Ban On Same-Sex Marriage Unconstitutional. (Tuesday February 17, 2015)

Fox 4 News interview with Steve Eagar and Michelle O’Neil regarding Texas first same sex marriage: Attorney talks state’s first legal same-sex marriage (Thursday February 19, 2015)

Channel 8 WFAA’s Attorney speaks about first legal gay marriage in Texas. (Thursday February 19, 2015)

Channel 11 North Texans React To 1st Legal Gay Marriage In The State (Thursday February 19, 2015)

KCEN TV in Waco Texas AG Says Travis County Same-Sex Marriage Void (Thursday February 19, 2015)

KRLD Interview regard Texas Same Sex Marriage Rulings (Friday February 20, 2015)



Travis County Rules Same Sex Marriage Ban Unconsitutional, Part 2

I reported yesterday on the Travis County Probate Judge’s ruling that Texas’ ban on same sex marriage is unconstitutional.  See Travis County Probate Judge Declares Same Sex Marriage Ban Unconstitutional.  Andrea Lucia @CBS11Andrea interviewed me regarding the ruling as part of her report on KTVT CBS 11.  See the video of the report here.  Let me know what you think is the effect of the ruling? Do you have a guess as to when the 5th Circuit’s ruling may come down?