The El Paso Court of Appeals issued a meaningful opinion this week on the rights of same-sex married couples to be found a parent of a child born during the marriage. The case is styled In re D. A. A.-B. — it does not have a case cite yet but the Westlaw cite is 2002 WL 3758574.

In re D.A.A.-B., 2022 WL 3758574 (Tex. App. – El Paso 2002, no pet. history).

Here’s the takeaways:

In that case, the two women were legally married in New Mexico. During the marriage, Andrea became pregnant through informal artificial insemination and gave birth to a child during the marriage. Although Cristina’s name did not appear on the birth certificate, the child was given a hyphenated last name that included hers. The parties operated as parents during the marriage. In the divorce proceedings, the parties did not name the child as a child of the marriage and did not address the parentage issues but continued to operate as co-parents. Thereafter, Cristina filed a SAPCR proceeding seeking adjudication as a parent and orders regarding the child.

The important legal conclusions from this opinion are as follows:

A married same-sex spouse is entitled to the same opportunity to assert parentage to a child born during the marriage as an opposite-sex spouse.

The U.S. Supreme Court held in the Pavan case that all of the benefits of opposite-sex marriage apply also to same-sex marriage. Pavan v. Smith, 137 S.Ct. 2075 (2017).  In D.A.A.-B., the El Paso Court concluded that Christina was conclusively a parent of the child:

“The UPA includes a section stating that the “provisions of this chapter relating to the determination of paternity apply to a determination of maternity.” TEX.FAM.CODE ANN. § 160.106. The unambiguous and plain language of this statute make it clear that the legislature intended to allow female spouses to establish their parentage just as male spouses are allowed to do. When read alongside the U.S. Supreme Court’s holding [in Pavan] that states must extend equal benefits to spouses in same-sex marriages, we reach the inexorable conclusion that the Family Code gives spouses in same-sex marriages the same opportunity to assert their parentage to a child born during the marriage, as it gives to spouses in opposite-sex marriages. This interpretation not only gives effect to all relevant portions of the Code, as written by the legislature, but also avoids an interpretation of the Code that would render it unconstitutional under the U.S. Supreme Court’s holdings.

Id. at *7 (internal citations omitted, emphasis added). The El Paso Court further provided that a parent has a fundamental liberty interest in being recognized as a parent and a same-sex spouse cannot be denied the right to seek parentage based on gender-specific definitions in the Texas Family Code. Id. at *8. Given the conclusive evidence that the child was born during the marriage of the parties, Cristina is considered the presumed parent of the child. Id.

The marriage parental presumption for fathers applies to non-gestational mothers as well.

The Texas Family Code provides that a married father is presumed to be the parent of a child born during the marriage. That presumption applies to maternity as well. Tex. Fam. Code §160.106. The Treto case first applied the parentage presumption to a same-sex couple. Treto v. Treto, 622 S.W.3d 397 (Tex. App. – Corpus Christi 2020). Thus, the El Paso Court confirms that the marriage presumption also applies to same-sex couples:

“We agree with the court’s analysis in Treto in applying the presumption of parentage to same-sex spouses, and add the observation that applying the presumption promotes the long-standing principle that the “best interest of the child is always the primary consideration of the court in determining issues of conservatorship and possession of or access to a child.” And in turn, it is presumed to be in a child’s best interest for parents to be appointed joint managing conservators, and to allow a child to have ‘frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, and to encourage parents to share in the rights and duties of raising their children after the parents have separated or dissolved their marriage.’”

Id. at *8 (internal citations omitted, emphasis added).

Where a child is conceived during a marriage through formal or informal assisted reproduction, the spouse is the parent of the child (not just presumed parent).

When a same-sex couple seeks to have a child, assisted reproduction methods are used. With a lesbian couple, the spouses may use medical providers to formally conduct artificial insemination procedures. On the other hand, oftentimes couples use informal methods of artificial insemination to become pregnant. Likewise, a couple may sign a formal written consent to the procedure or a couple may consent informally by treating the child as their own. The Texas Family Code clearly provides that a spouse is the parent of a child that results from assisted reproduction where consent occurs either in writing or by conduct. Tex. Fam. Code §160.703(a), 160.704(b). The El Paso Court conclusively applies this provision to same-sex couples despite the gender-specific language in the statute:

“As set forth above, the Code provides that a husband who has consented to ‘assisted reproduction’ by his wife—either formally or informally—is considered the father of the ‘resulting child.’ Id. § 160.703. And, in turn, the Code defines ‘assisted reproduction’ to mean ‘a method of causing pregnancy other than sexual intercourse,’ to include, among other things, ‘intrauterine insemination.’ Id. § 160.102(2)(A).”

Id. at *9.

“…under the plain language of the statute, if both spouses have signed a written consent document agreeing to the insemination, or if they have openly treated a child born through that method as their own after its birth, the trial court may still find that the non-gestational spouse is the parent of the child born in this way. Id. § 160.704(a), (b).”

Id. at *10.

What is the remedy?

What is the remedy for a failure to find parentage in this situation? Suit may be brought as part of the divorce/SAPCR cause of action. Or, an independent suit for adjudication may be brought under the parentage statutes.

“The UPA provides that a party may bring an independent civil suit seeking the adjudication of his or her parentage of a child. See Tex. Fam. Code §160.601(a).” Id. at *13.

Alternatively, the D.A.A.-B. opinion supports the legal theory that the divorce decree between the parties is either void or lacks finality for failure to adopt the parentage finding. First the El Paso Court opens the possibility of the voidness of the decree in this circumstance:

“In fact, at least one court has held that the parties’ failure to follow the Code’s mandatory joinder requirements renders a divorce decree void. See, e.g., Soliz v. Soliz, No. 13-02-010-CV, 2003 WL 21025900, at *2 (Tex.App.– Corpus Christi–Edinburg May 8, 2003, no pet.) (mem. op.), citing Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.App.- -Corpus Christi 2001, no pet.).”

Id. at *14, fn 16. Further, the El Paso Court opines that the decree is interlocutory and cannot be final absent the mandatory joinder of the SAPCR:

“A divorce decree that mistakenly states that no children were born during the marriage, or which fails to include all of the children who were born during the marriage, cannot be considered final.”

Id. at *15.

 

Read the opinions here:

IN THE INTEREST OF DAA-B A CHILD

Pavan v Smith

Treto v Treto

 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.