LGBT Rights Still Likely to Remain an Issue after U.S. Supreme Court Decision

This past summer, the United States Supreme Court issued its landmark decision in Obergefell v. Hodges, which held that under the U.S. Constitution, no state may forbid same-sex couples from marrying and that no state may refuse to accept the legality of same-sex marriages performed elsewhere.  This Supreme Court opinion, however, did not address issues regarding children of same-sex marriages/partnerships.  As evidenced below, much work still remains to be done in this regard. The Uniform Parentage Act, as codified in Chapter 160 of the Texas Family Code, is designed to address how to adjudicate parentage of a child; however, for the most part, it deals only with how to adjudicate the paternity of a child.  As such, the statutes, as they currently appear in the Family Code, are geared toward men whose paternity of the child is being adjudicated.  But what happens when parentage needs to be adjudicated for a child who has two people acting as parents who are female, lesbian, and who are or at one time were married or involved in a romantic relationship?  What happens when a transgender person acting as a parent wants to establish his/her parentage?  This past year, the Texas Court of Appeals addressed the latter issue in the case In Interest of N.I.V.S., 04-14-00108-CV, 2015 WL 1120913 (Tex. App.—San Anonio Mar. 11, 2015, no pet.).

In this case, the father was born female; however, the father self-identified as a male and had been raised that way.  The mother knew that father had been born female, too.  The mother and father began a romantic relationship, during which the mother adopted two children who referred to the father as their father.  Additionally, the father was known as such to the children’s family, friends, school officials, and church officials.  The father even became a stay at home parent of the children; however, the father moved out of the family home when he and the mother separated.  The father still continued to care for the children in the mornings, after school, and on weekends until the mother unilaterally decided to refuse any additional contact between the father and the children.  The father shortly thereafter obtained an order to legally change his female birth name to the male name he had self-identified with since he was a child.  Then the father filed a suit affecting the parent-child relationship (SAPCR) in which he sought joint managing conservatorship and equal periods of possession of the children.  Shortly after the father filed the SAPCR, he filed a voluntary statement of paternity and obtained an order in which his identity was legally changed from female to male.

Both the trial court in San Antonio and Texas Court of Appeals, however, denied the father’s SAPCR and opined that under the Texas Family Code, the father had no standing to seek custody orders for the children.  The Court of Appeals specifically cited to Section 160.602(a)(3) of the Texas Family Code, which states that “a man whose paternity of the child is to be adjudicated” has standing to file a suit to adjudicate parentage and that Section 102.003(a)(8) of the Texas Family Code gives standing to file a SAPCR to “a man alleging himself to be the father of a child filing in accordance with Chapter 160 . . . .” (emphasis added).  The Court then found that since the father was not a “male” at the time that he filed the SAPCR, he lacked standing under those laws cited and that Texas law does not recognize the concept of “psychological parent” (author’s note: which is undoubtedly what this father was to these children).  In short, the Court ruled that since the father was not legally recognized as a male at the time he filed the SAPCR, he lacked standing to bring his case under the Texas Family Code’s parentage statutes.

As illustrated by the case above, until the legislature changes the language of the Texas parentage statutes, same-sex partners, spouses, and children of same-sex relationships could continue to encounter difficulty in our family courts.  If you or a loved one needs advice on the best way to address these issues or any others in the realm of domestic relations, please call 214-692-8200 for a consultation with one of the attorneys at McClure Law Group, PC, a law firm with vetted experience on the frontiers of family law.

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