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 http://caselaw.findlaw.com/ca-court-of-appeal/1606532.html. 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.