Texas Divorce Attorney Blog
Parental rights of same-sex couples can be complex. A Texas appeals court recently considered a case in which the mother’s spouse who had been named as a parent on the child’s birth certificate challenged a court order for genetic testing and a subsequent order adjudicating the child’s biological father as the child’s parent.
According to the appeals court, C.B. and the child’s mother got married in 2017. The mother gave birth to the child in November 2018. C.B. and the mother told hospital staff they were the child’s parents and were both listed on the birth certificate. They lived and raised the child together until the mother petitioned for divorce in 2021.
The mother listed the child as a child of the marriage in her original petition, but subsequently amended the petition. In the amended petition, she denied C.B. was the child’s parent and identified another person, identified by the court as “C.H.,” as an “additional [r]espondent.” C.H. filed an answer claiming to be the child’s biological father.
C.B. and the mother agreed to temporary orders addressing their rights and obligations regarding the child. The temporary orders granted C.B. an expanded standard possession schedule and required her to pay child support.
C.H. petitioned for genetic testing and a declaratory judgment naming him the child’s father and stating C.B. was not her mother. The trial court appointed an amicus attorney for the child. C.B. moved to deny genetic testing and to dismiss C.H.’s petition. The trial court met with C.B.’s and C.H.’s attorneys in chambers and abated the pending motions, dismissed the amicus attorney, and ordered genetic testing without an evidentiary hearing.
The genetic testing found a greater than 99% probability C.H. was the child’s father.
At a subsequent hearing, C.H. orally moved for the court to adjudicate him the child’s father and dissolve the temporary orders. C.B. objected, arguing adjudication of parentage was a “final[-]trial issue” and she had not received notice the issue would be decided at the hearing. The trial court adjudicated C.H. as the child’s father and dissolved the temporary orders.
C.B. petitioned for a writ of mandamus.
Order for Genetic Testing
C.B. argued the trial court abused its discretion when it ordered genetic testing without a hearing including the amicus attorney.
The appeals court noted that mandamus is “largely controlled by equitable principals.” In this case, C.B. did not file the mandamus petition until six months after the order for genetic-testing was signed and almost eight months after the court had orally granted the request for genetic testing. The appeals court noted C.B. could have petitioned for mandamus relief and sought a stay before the genetic testing was completed. The appeals court noted C.B. did not provide a reason for the delay. The appeals court concluded equitable principals precluded mandamus relief as to the genetic testing order in these circumstances.
Adjudication of Parentage and Dissolution of Temporary Orders
C.B. also argued the trial court abused its discretion when it adjudicated the child’s parentage and dissolved the temporary orders at the hearing when she had not received notice those issues would be considered.
The only issues set to be heard at the hearing were C.B.’s motion to compel discovery and C.H.’s motions for a protective order and to bifurcate the Suit Affecting the Parent-Child Relationship case from the divorce. C.B. had opposed the relief C.H. sought in a written motion. The appeals court concluded that the trial court tried a contested issue without giving C.B. reasonable notice pursuant to Rule 245. The lack of notice denied C.B. the opportunity to prepare and therefore denied her the meaningful opportunity to be heard. The appeals court concluded this constituted an abuse of discretion. The appeals court further concluded that dissolution of the temporary orders, which was based on adjudication of C.H. as the child’s father, and for which C.B. also received no notice, was also an abuse of discretion.
The appeals court further concluded that C.B. lacked an adequate appellate remedy because the trial court’s order divested her of fundamental rights and that she was therefore entitled to mandamus relief.
The appeals court denied mandamus relief regarding the order for genetic testing, but conditionally granted it regarding the adjudication of the child’s parentage and dissolution of the temporary orders. The appeals court instructed the trial court to vacate the order and set a new hearing to address adjudication of the child’s parentage and dissolution of the temporary orders with reasonable notice to the parties.
Call a Dallas Family Law Attorney
Same-sex parents may face additional complexities regarding custody that are not present when both parents are biologically related to the child. Same-sex parents should consider seeking legal advice during the relationship to protect their rights not only in the event of a future break-up of the relationship, but also to protect their rights if the other parent becomes incapacitated or passes away. If you need legal advice or representation, set up a consultation with the Texas family law attorneys at McClure Law Group by calling 214.692.8200.