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19

order to litigate parental rights. That typically will be “actual care, control, and possession of the child for at

least six months ending not more than 90 days preceding the date of the filing of the petition.”

65

The parental presumption may be an issue in the break-up of a same-sex couple. If a child is born to a

female couple by assisted reproduction followed by childbirth to one of the women, that birth mother will

be a parent and the other female spouse will not be a parent unless she adopts the child. The Family Code

creates a presumption that a parent should be appointed as sole managing conservator in a custody fight

with a non-parent, and to prevail the non-parent must prove that the appointment would significantly impair

the child’s physical health or emotional development.

66

So the spouse who is not a biological or adoptive

parent may face this elevated burden of proof. Family Code Section 160.203 provides a presumption of

paternity for children born into marriage, but the presumption is stated in terms that a man is presumed to

be the father of a child born to the wife during marriage.

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A similar issue could arise between two married

men, where one is the biological father and the other spouse has not adopted. The constitutionality of that

wording will no doubt be challenged.

Conclusion

The legal acceptance of same-sex marriage in America has developed in just over two decades, with state

court decisions, statutory enactments, amendments to state constitutions, lower federal court decisions,

and finally a decision of the U.S. Supreme Court. Two decades is a long time measured by the lives of

individuals, but a remarkably short period of time considering that marriage equality had no legal recognition

20 years ago and now is considered to be a fundamental right protected by the U.S. Constitution.

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