For most couples with children, a breakup in their relationship does not equate to losing their children. However, when it comes to same sex couples, particularly those who never married, there are legal barriers that prevent them from asserting their rights as parents to their children.

In a recent case out of the Fourth Court of Appeals in San Antonio, a same sex couple conceived a child through artificial insemination. A year later, the parties separated, and the biological mother (Bio Mom) of the child moved to Texas, subsequently denying her former partner (Non-Bio Mom) any access to their child.  Non-Bio Mom filed a lawsuit seeking to establish legal standing to assert her parentage through two separate channels: first, she filed for divorce based on common law marriage, and second, she sought joint managing conservatorship through the adjudication of parentage. Parentage is adjudicated when a court formally orders the existence of a parent-child relationship.

Non-Bio Mom’s case was dismissed because she lacked standing, which is a legal hurdle overcome only by satisfying specific statutory requirements—none of which were met by Non-Bio Mom’s particular set of facts. The trial court denied the existence of a common law marriage between the parties and dismissed Non-Bio Mom’s statutory claims to standing as both an intended parent and a party with actual care, possession, and control of the child for at least six months.

Non-Bio Mom’s claim as the intended parent was dismissed because the statute only applies to men claiming to be fathers.Her claim as a party with actual care, possession, and control for at least six months was dismissed because the applicable period of time had ended more than 90 days before Non-Bio Mom filed her lawsuit, and the Court of Appeals further stated that she was not entitled to “equitable tolling” of her claim (essentially an extension of the statute of limitations which would preserve Non-Bio Mom’s claim) based on Bio Mom’s representations that the parties would reach an agreement.

Had Non-Bio Mom’s facts been tweaked slightly, she may have had stronger footing to defeat Bio-Mom’s motion to dismiss her lawsuit. For instance, another provision of the Texas Family Code provides that a man is presumed to be the parent of his child he lives with the child for two years, and he represents to others that he is the father of that child. However—note the pronoun usage—the kicker here is that the “Presumption of Paternity” appears to preclude a parental presumption for mothers. While the Uniform Parentage Act (UPA) is intended to be gender neutral, Texas courts have not consistently acknowledged this concept, nor has the Texas legislature adopted gender-neutral verbiage. See Does Heather Really Have Two Mommies? 

The bottom line is that any unmarried individuals in same-sex relationships with children who are contemplating a breakup should seek legal counsel prior so they can fully explore and understand all of the potential outcomes and complications. Married individuals in same-sex relationships may also face post-breakup hurdles depending on the date of their marriage and whether they are listed as a parent on their child’s birth certificate. It is imperative that individuals seek legal counsel from attorneys who handle these types of cases regularly and understand all aspects of the law as it applies to each individual case—both from the trial court level and from the appellate level.