Texas made history back in 2001 when it became the first state to enact the Uniform Parentage Act (UPA) (2000), modifying Chapter 160 of the Texas Family Code. The UPA, which became a national standard in 2017, provides states with a uniform legal framework for establishing parent-child relationships.
What it does, effectively, is expands the notion of parenthood from a biologically-connected bond between a parent and child to include the idea of a “de facto” parent. For example, if a same-sex couple has a child and one person in the relationship is the biological parent, but the other is not, yet still carries out the duties of a parent, it’s still possible to legally consider both spouses as the child’s parent.
At last year’s Advanced Family Law forum, family lawyers Karri Bertrand and James Evans took a look at the topic and noted, “The revisions to the 2017 UPA provide for the establishment of a de facto parent as a legal parent of a child. Most states recognize and extend at least some parental rights to people who have functioned as parents to children but who are unconnected to those children through either biology or marriage.”
They went on to say, “Some states recognize such people under a variety of equitable doctrines, which are sometimes labeled ‘de facto parentage,’ ‘in loco parentis,’ or ‘the psychological parent doctrine.’ Other states, including Texas, extend the mere right to sue through broad third-party standing statutes.”
For same-sex couples who get divorced, it’s certainly more complicated to determine parental rights, though the case law on the topic is more comprehensive than it once was.
Bertrand and Evans note, “With same-sex couples, it is common for only one parent to be biologically related to the child. However, if the other parent does not formally adopt the child, there is a gap in the law regarding whether the non-biologically related parent is actually a legal parent. The clear trend in case law across the country says that he or 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 own, both persons should be determined to be the child’s legal parents.”
They also point out, “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 their parent.’”
I think what’s key here is the phrase, “Children should be secure in knowing who their parents are.” In divorce and custody cases, judges use the standard known as what is in the “best interest of the child.” In cases where just one parent is biologically connected to the child, but both parents have been involved in parenting since the child’s birth, it’s obviously a different scenario than if the de facto parent is part of a blended family and has only been involved in that child’s life for a few years.
The good news in all of this is that the law is becoming more clear and even more open-minded about what parenting is by taking the idea of parent-child bonds beyond mere biology. However, it can make legal matters a little more challenging, if only for the fact that there’s not the same volume of case law history for same-sex couples or non-traditional families.
The Law Office of Lisa A. Vance has experience in this arena, and if you’re a parent wondering about how your ability to see your child might be affected by divorce, a consultation will help you know what your options are and how existing laws might help you. We are a fierce, compassionate law firm that understands and appreciates all families are different, and the ultimate goal for all families should be the happiness and well-being of the children within it.