Family relationships can be complicated, and the typical nuclear family is not always the standard father, mother, 2.5 children, and a dog. While a family—for emotional purposes—can be whomever you chose it to be when considering legal implications of who is family, Texas looks to the Texas Family Code.
A “mother” is defined as the woman who (1) gave birth to a child; (2) adopted a child; (3) was adjudicated as (declared by a court to be) a child’s mother; or (4) was defined as “mother” in a valid, court-approved gestational agreement. A “father” is defined as a man who is a (1) presumed; (2) adoptive; or (3) adjudicated father; or a (4) husband who consented to his wife becoming pregnant through assisted reproduction; or (5) a man defined as a “father” in a valid, court-approved gestational agreement.
Although the case law is not entirely settled, a woman can also become a mother by presumption. For example, in a marriage between two women, if the child is born during the marriage, both women will be considered mothers of the child. One because she gave birth to the child, and the other because she was married to the biological mother at the time of the child’s birth. However, under the current caselaw, if two women are merely in a dating relationship, this presumption of maternity will not extend to the non-biological mother. This fact can be very important because if the dating couple breaks up, the non-biological “parent” will face the “fit-parent presumption” before she can get any court orders for the child. This presumption makes it nearly impossible to gain access to a child if the biological parent is an adequate parent.
In same-sex relationships between men, the same presumptions likely apply; however, it is more common for a child to be created through a valid gestational agreement. In that situation, the language of the contractual agreement becomes very important in determining parentage.
The Family Code defines a sperm donor as a man who donates sperm that is used by a physician to impregnate a woman. This means that if the sperm is given to a potential mother or surrogate without the aid of a doctor, there could be legal complications. The man could invade the intended family and seek possession of a child when the would-be parents believed the man did not intend to be involved. Or, alternatively, the parents could obtain a court order requiring the man to pay child support when he considered his sperm to be a one-time gift. The man has little recourse in this situation because there is no civil claim for “unwanted pregnancy” in Texas.
If you are in a situation where you consider yourself to be a parent, but the Texas Family Code does not, it would be a good idea to get a court order legally defining the relationship before a breakup. No one likes to think about the possibility of breaking up with the co-parent of their child; however, this is a useful, proactive family planning step, similar to drafting a will or premarital agreement. Alternatively, you risk finding yourself in a custody battle in which you have fewer rights than you may have expected.
For more guidance on how to legally define your family, contact us for a consultation.