Texas Divorce Attorney Blog
The legal recognition of same-sex marriage has expanded the ways families are formed, but it has not changed the legal requirements for establishing parentage under Texas law. When a child is born during a marriage, and only one spouse is recognized as the child’s legal parent, questions regarding conservatorship and possession can become especially complex if the marriage later ends.
A recent decision from the Fort Worth Court of Appeals illustrates how Texas courts continue to distinguish between a person who has acted as a parent and one who is legally recognized as a parent: In re M.S., No. 02-26-00016-CV (Tex. App.—Fort Worth Mar. 27, 2026, orig. proceeding).
The Dispute Centered on Parentage Rather Than Parenting
In the case of In re M.S., two women married before one spouse conceived a child through assisted reproduction involving a third party. Although both women helped raise the child during the marriage, the non-biological spouse never adopted the child and was not otherwise recognized as a legal parent under the Texas Family Code. Tex. Fam. Code § 160.201(a). Nevertheless, agreed orders entered earlier in the litigation named both women as joint managing conservators.
After the parties separated, the child’s biological mother sought to modify those arrangements and remove her former spouse as a joint managing conservator. The trial court declined to do so in temporary orders, and the mother sought mandamus relief from the court of appeals.
Texas Law Separates Parentage from a Parental Relationship
The opinion illustrates an important distinction in Texas family law. A person may play a significant role in a child’s upbringing without becoming the child’s legal parent. While courts recognize the importance of established relationships, legal parentage remains governed by the Texas Family Code rather than by the length or quality of the adult’s involvement in the child’s life.
For married same-sex couples, this distinction can become particularly significant when only one spouse has a legally recognized parent-child relationship. Depending on how the child was conceived and whether steps such as a confirmatory or second-parent adoption were completed, one spouse may possess constitutional parental rights. At the same time, the other may be treated as a non-parent for purposes of later custody litigation.
The Constitutional Rights of a Fit Parent Remain Central
The Fort Worth Court of Appeals relied heavily on the Texas Supreme Court’s decision in In re C.J.C., which reaffirmed that a fit parent’s decisions regarding the care, custody, and control of a child receive constitutional protection. Courts cannot disregard those rights simply because another individual has developed a close bond with the child or because a different custody arrangement may appear beneficial. See In re C.J.C., 603 S.W.3d 804 (Tex. 2020).
The Significant Impairment Standard
Texas law requires a non-parent seeking conservatorship over a parent’s objection to overcome a strong presumption favoring the parent. Under Texas Family Code section 153.131, a parent is entitled to be appointed sole managing conservator unless the court finds that doing so would significantly impair the child’s physical health or emotional development.
This standard requires evidence of actual or substantial harm, not merely a showing that a non-parent has a close relationship with the child, has helped raise the child, or may provide a different parenting arrangement.
If You’re Dealing with a Complicated Child Custody Matter, You Need a Qualified Family Law Attorney
Conservatorship disputes involving non-biological parents, particularly same sex couples, often present complex questions of parentage, constitutional rights, and the application of Texas family law. If you have questions about protecting your parental rights or resolving a custody dispute, the child custody attorneys at McClure Law Group can evaluate your circumstances and advise you on the legal options available. To connect with our team, call (214) 692-8200.