A new opinion out of the Court of Appeals in the Thirteenth District of Texas applies the paternity presumption under the Texas Uniform Parentage Act to a female non-bio parent in a same sex marriage, where the child was born during the parties’ marriage.

Jennifer Treto appealed the trial court’s ruling, arguing that she is not a parent because she is not biologically related to the child and that the Family Code does not recognize her as a parent. The Court of Appeals affirmed the trial court’s ruling.

Under the Family Code, and were gender not at issue, Jennifer is a presumed “father” because she was married to Sandra at the time Sandra became pregnant and the child was born during their marriage. Both parties confirmed that they had embraced that child as their own. Sandra testified that Jennifer was an intended parent and Jennifer testified that she participated in the child’s insemination, in the events of the pregnancy, the birth, and in taking care of the child once the child was born. On appeal, Jennifer argued that the Texas statutes allow her to walk away from her marriage without any legal relationship with the child and without supporting the child of the marriage financially. This argument defies the long-standing public policy espoused by the State of Texas to protect the interests of its children including ordering child support.

In the Treto opinion, the court applies the presumption of paternity equally to maternity, which is stated in the Family Code but previously construed otherwise in the A.E. case out of Beaumont (where the court narrowly construed the definitions of father and a mother and the sections concerning parentage and standing).

The parental presumption should be applied neutrally as to gender under both the Pavan and Obergefell opinions. In 2015, Obergefell decided that prohibition of same sex marriage violated the federal constitution’s guarantee of equal protection. In 2017, Pavan unequivocally extended Obergefell’s reach to ancillary benefits of marriage including such important, but mundane things as completing the names of the parents on the birth certificate of a child. Accordingly, the court in Treto interpreted the statute as written by the legislature, giving effect to all of the portions of the statute, and avoiding an interpretation that violates the equal protection guarantees of the Texas and federal constitutions, concluding:

“The trial court gave effect to the Texas Family Code presumption that a child born of the marriage is the child of the mother’s spouse … The trial court treated this married couple like any other married couple who separated after having a child; it divided the community property, entered an order regarding the rights and responsibilities regarding the child including support, and granted the divorce requested by both.”

Also, worth noting – there is another case (Jaetzold) pending before the Beaumont Court of Appeals (Ninth District) involving a non-bio parent’s attempt to sue for access and possession of a child born during the parties’ marriage. The trial court in that case found that the non-bio parent did not have standing to bring suit. Stay tuned!

Hat tip to Shelly Skeen with the Lambda Legal Dallas team for alerting us to this case!