How Same Sex Marriage Affects Family Law in Texas

As you have probably heard, the United States Supreme Court ruled on June 26, 2015 that the states must allow same sex marriage AND must recognize same sex marriages that occurred in other states. This post will discuss some of the unresolved issues surrounding that decision.

• Paternal Presumption

The Texas Family Code creates a presumption of paternity if the wife has a child during the marriage. This means that if the wife has a child it is automatically assumed that the husband is the father until proven otherwise. How this will affect same sex marriage is yet to be determined. Perhaps it will fall to the presumption that both parents should be joint managing conservators. I suspect Judges will not immediately fall into declaring the non-biological parent a parent by law and instead same sex couples will still have to go through procedures like step-parent adoptions (discussed below).

• Birth Certificates

Currently when a child is born there is a place for the mother’s information and a place for the father’s information. With same sex marriage will the non-biological parent’s name be added to one of these sections? If so, I personally know many gay people that get upset when they are asked who is the guy and who is the girl, so how would they feel having to put their name on a line that does not represent them. I suspect that this will be a long drawn out battle that will cause friction on all sides of the equation.

• Step-Parent Adoptions

I believe these are still going to be necessary in order to give the non-biological parent full parental rights to the children born during the marriage. I also suspect that couples are now going to have to get married in order to have these approved. In the past, since marriage was not allowed in Texas, same sex couples were traveling to certain counties that were more open in order to give the non-biological parents full parental rights. Now, I believe that you either still have to travel to those counties or you need to get married before proceeding with a step-parent adoption. All counties in Texas are now going to have to accept the step-parent adoption petitions by married same sex couples and unless there is good cause shown why it would not be in the best interest of the children will have to approve these step-parent adoptions.

• Common Law Marriage

I have previously written about the elements of common law marriage here. The elements are that you agreed to be married, after agreement you lived together as husband and wife, and you held yourselves out to the public in Texas as married. The United States Supreme Court did not require recognition of a common law marriage only that the states allow same sex couples to marry. There is much debate about whether a same sex couple who met these requirements prior to June 26, 2015 is married as of the date they met those requirements or after June 26, 2015. Common law marriage in general is difficult to prove when it arises in the context of a divorce and I suspect it will be even more difficult in the context of same sex marriage. Only time and litigation will tell if courts are going to recognize a common law marriage existing before June 26, 2015.