presump of maternityTexas Family Code section 160.106 says that the provisions of Chapter 160 relating to the determination of paternity apply to a determination of maternity in Texas. So, when a heterosexual couple is married, the father is presumed to be the father of the child. The law provides other instances when a man is presumed to be a father in a heterosexual relationship such as when the father signs an acknowledgement of parentage or allows himself to be named on the birth certificate. Interestingly, paragraph 5 of 160.202 allows for a presumption of paternity for a man who, during the first 2 years of a child’s life, resides in the household with the child and represents to others that the child was his own. Could this section be applied to a lesbian couple (married or not), when a child is born during the marriage to one mother, but the non-biological mother holds out to the world that the child is her own as well?According to 160.106, the same paternity presumption would apply to the maternity issues.

However, the Houston 14th Court of Appeals in 2014 questioned the application of 160.106 in the case of In re MMM. The MMM case involved an issue of assisted reproductive technology, so not exactly the same as a same sex relationship. The birth mother was undisputedly not the genetic mother of the children because the children were conceived through reproductive technology using donated sperm and egg. After the children’s birth, the biological father sued to establish his paternity. The Houston Court distinguished between a “presumption” of maternity versus a “determination” of maternity in 160.106, and restricted that statute’s interpretation to the strict wording. However, this case has to be viewed from the very narrow factual lens presented.

In other states, the similar statute from the Uniform Parentage Act has been interpreted to apply to lesbian non-biological mothers. So, if a nonbiological mother held out to the world that she was the mother of the child as if the child was her own, then the paternity presumptions might arguably apply to such situation. Likewise, in the event that Texas begins to recognize same sex marriages, the same parentage presumptions related to men – such as the presumption of paternity for a child born during a marriage – might be held to apply to a Texas nonbiological mother.

See Presumption of MATERNITY in Texas? at my other blog Dallas Divorce Law Blog.

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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.