Same-Sex Marriage and Parentage Issues in Texas – What You Need to Know

Same Sex Marriage and Parentage – that is a question that not many in the family law community have thought about until recently.  In a 2016 survey by the American Community Survey group, it was determined that of the over 64 million Americans who live together as a couple, roughly 88% of those are married opposite-sex couples, 11% unmarried opposite-sex couples and 1% same-sex couples.

On June 26, 2015, the U.S. Supreme Court handed down its opinion in the landmark case, Obergefell v. Hodges. In this case, it was held that same-sex couples may exercise the fundamental right to marry and that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. People from all over the United States and around the world had been waiting and watching for the Court’s decision on this case.

            In Obergefell, the Court found “Marriage as a Fundamental Right” stating the following:

  • That the personal choice regarding marriage is inherent in the concept of individual autonomy;
  • That the right to marry supports a two-person union unlike any other in its importance to committed individuals;
  • That marriage safeguards children and families and draws meaning from the related rights of childrearing, procreation, and education, and,
  • That states have contributed to the fundamental character of marriage by placing it at the center of many facts of the legal and social order.

            With regard to Marriage and Children, the Court further found in Obergefell, that:

  • The right to marry, establish a home, and bring up children is a central part of the liberty protected by the Due Process Clause (citing Zablocki v. Redhail [1978]);
  • That marriage offers material and tangible benefits, including permanency and stability;
  • That same-sex and opposite-sex couples alike provide loving and nurturing homes to children, and,
  • That there is no requirement that married couples must procreate, nor is the right to marry conditioned on the capacity or commitment to procreate.


Many people do not realize that when there is a divorce in Texas and there were children born or adopted to the couple in that marriage, there are actually TWO cases going on at the same time: the suit to dissolve the marriage and the suit affecting the parent-child relationship. When there is a divorce between a Texas couple, after Obergefell, all the rights of marriage and issues of the division of property between a married couple will be applied, such as the requirement that the property accumulated during the marriage shall have a “fair, just, and equitable division” and that the principles of characterization of that property, i.e. whether it is separate or community, will need to be determined by the Court or a jury. And to the extent that court-ordered alimony is available in Texas for married couples, that right will now be extended to both parties in a same-sex marriage.

            When a child is born to or adopted by a couple during their marriage, there are certain presumptions regarding that child.  Notably, a man is presumed to be the child’s father if:

  • he is married to the mother at the time of the and the child is born during the marriage;
  • he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  • he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declare invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
  • he married the mother of the child after the birth of the child in apparent compliance with the law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and,

(1) the assertion is in a record filed with the vital statistics unit;

(2) he is voluntarily named as the child’s father on the child’s birth certificate; or

(3) he promised in a record to support the child as his own;

  • Or, during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.


As complicated as Section 160.204 of the Texas Family Code sounds when it sets out how to determine the presumption of the paternity of a father, it is more complicated to reach that determination with a same-sex couple. At the time of the writing of this, there is one case in an appeals court in Texas which has stated that it does not construe “parentage” as a part of what the U.S. Supreme Court called part of the “constellation of benefits” that accompany marriage. However, in June 2017, the U.S. Supreme Court found in the Pavan v. Smith case that same-sex parents have the right, invalidating an Arkansas statute, to have both their names listed on the child’s birth certificate. The U.S. Supreme Court went on to state that this disparate treatment of same-sex versus opposite-sex parents is impermissible pursuant to the Obergefell case and it disputes the notion that biological parentage is the only type of parentage that benefits from the right to be named as a parent on a birth certificate. Since the Pavan case, other such cases have been popping up in many states around the United States, so it can be reasonably concluded that the one Texas case that awaits a ruling from the Texas Supreme Court on this issue will either follow the Pavan case or possibly be heard by the U.S. Supreme Court.


With same-sex couples, it is not uncommon for only one parent to be biologically related to the child.  However, if the other parent doesn’t formally adopt the child, there is a gap in the law about whether the non-biologically related parent is actually a legal parent.  The clear trend in case law across the country says that he/she is a parent.  The prevailing logic holds that, when two consenting adults decide to marry, to bring a child into the world, to participate in the child’s gestation, to participate in rearing the child, and to raise the child as their child, both persons should be determined to be the child’s legal parents.  This is not a foreign concept in Texas.  The El Paso Court of Appeals held as far back as 2003 that “…children should be secure in knowing who their parents are. If a person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that such person is not his/her parent.”  Although that case involved a man and woman, the reasoning extends to any married couple.


A committee of Texas judges and family lawyers are currently working on proposed changes to the Uniform Parentage Act (the current version of which is in effect in Texas) to impose gender neutrality throughout the statute, as has already been adopted by some states. Courts will continue to address these issues, but the direction of the law is clear: same-sex couples have the equal protection under the laws of the United States to be married and to be the legal parents of children born during that marriage.