While the recent Supreme Court decision extending marriage equality nationwide marks a monumental step forward for equality, it by no means resolves all legal issues related to same-sex families. In fact, because same-sex marriage is relatively new to the country and brand new to Texas, there are still many legal issues that remain to be resolved.
One very important related point: even though the marriage law in Texas has changed, for now it continues to be very important for the non-birth mother to adopt to protect her parental rights.
There are a number of reasons why second-parent adoption in Texas remains important to protect the parental rights of the non-birth parent:
- Generally, when a child is born to a couple during marriage, Texas law presumes the child is that of the married couple. However, given that marriage equality is new to Texas, we have no idea at this point whether Texas courts will treat same-sex couples the same as opposite-sex couples by applying this marital presumption. In fact a New York court recently ruled that this presumption did not apply to a married same-sex couple who had the child during the marriage. The court explained that unlike in a heterosexual marriage, it’s impossible for the non-birth mother to be the child’s biological parent.
- Even if the presumption were applicable, a presumption of parentage is merely that – it is not conclusive proof of parentage and may be rebutted by other evidence.
- Not all states have a presumption of parentage when a child is conceived during the marriage. Thus, if you moved to a state without this presumption, the non-biological parent’s rights could be at risk.
For these reasons, it is still very important for the non-biological parent to proceed with a second-parent adoption.
Questions? Contact me.