Adoption is the statutory process of terminating a child’s legal rights and duties toward the natural parents and substituting similar rights and duties toward adoptive parents. 

Maternity (the mother-child relationship) is established by the woman giving birth to the child, an adjudication of the woman’s maternity, or adoption of the child. 

Paternity (the father-child relationship) is established by any of the following:

1. An unrebutted presumption of the man’s paternity
2. An acknowledgment of paternity
3. An adjudication of paternity
4. Adoption of the child
5. The man’s consenting to assisted reproduction by his wife, which resulted in the birth of the child.

A man is presumed to be the father of a child when:

1. The child is born during the marriage of the man and the child’s mother;
2. The child born within 300 days after a marriage is terminated by death, divorce, or annulment;
3. Marriage occurs after the child’s birth, plus voluntary assertion of paternity;
4. The man resides with the child during the first two (2) years of the child’s life and holds the child out as his child.

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A pre-marital agreement (also known as a pre-nuptial agreement) is a contractual agreement entered into between parties before marriage.  The agreement defines each party’s property rights with respect to the other, whether or not the couple will accumulate community property after their marriage, and if so, if there will be limitations on how community property is accumulated.  Pre-marital agreements also serve to clarify each party’s separate property rights.  Marital agreements are contractual agreements between a husband and wife executed after marriage, that serve to define the community and separate property rights with respect to one another.  In order to understand marital property, one must understand the definitions of separate property and community property. 

A spouse’s separate property consists of:

1.                  The property owned or claimed by the spouse before marriage;

2.                  The property acquired by the spouse during marriage by gift, devise, or descent; and

3.                  The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

Community property consists of the property, other than separate property, acquired by either spouse during marriage.

In Texas, all property accumulated during marriage is presumed to be community property.  The community property presumption can be rebutted, but a husband or wife attempting to prove that property is separate must prove this by clear and convincing evidence.  The clear and convincing evidence standard of proof is higher than the normal burden in civil cases, which is preponderance of the evidence (i.e., > 50%).  One establishes clear and convincing evidence by using tracing principles – that is tracing the property back to the funds used to purchase the property.  Texas property is characterized at the inception of title. 

Texas Property

Texas property rights are constitutionally based and have their origins in Spanish law.  There are a total of nine (9) community property states, but Texas has always been a community property jurisdiction.  The 1836 Texas Constitution defined the wife’s separate property. 

Annulment is the process by which a court will declare a marriage to be void – as if the marriage never occurred.  Texas law provides limited circumstances in which couples may have their marriage annulled.  Examples of circumstances include under age marriage, persons who married under the influence of narcotics or alcohol, persons who were under a mental incapacity at the time of marriage, marriage obtained by fraud, duress, or force, or permanent impotency of a party at the time of marriage which was unknown to the other party. 

Non-Marital Cohabitation Agreements – Some couples wish to live together outside the bounds of marriage and avoid common law marriage.  A couple may establish a common law marriage by having an agreement to be married, cohabitating, and holding out to other persons that they are married.  Because there is no written evidence of marriage as there is with ceremonial marriage, the evidence in common law marriage can become blurred with a “He Said – She Said”.  To avoid such a situation, some couples enter a contractual agreement indicating they live together and have deliberately chosen not to marry.  More importantly, such an agreement may define the property rights in jointly owned property, such as a house, vehicles, or bank accounts.

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Alternative Family Planning

As of November 8, 2005, the Texas Constitution was amended as follows:  Marriage in this state shall consist only of the union of one man and one woman.  This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

Rights of Grandparents

The Texas Family Code grants biological or adoptive grandparents and independent cause of action for “reasonable access” to their grandchildren under a SAPRC.  Grandparent rights are very limited and subject to many factors.  First, courts will inquire into whether access to the child by the grandparents is in the child’s best interests.  Also, access by the grandparents is limited to very specific fact situations, such as:

1. The grandchild’s parents are divorced or have been living apart for the past three (3) months;
2. The grandchild has lived with the grandparents for at least six (6) months within the preceding 24-month period;
3. The parent who is the grandparent’s child is dead, has had his or her parental rights terminated, has been in prison during the preceding three (3) months, or has been found by a court to be incompetent; or
4. The grandchild has been abused or neglected or has been adjudicated as delinquent.

There can be no access to the grandchild who has been legally adopted by a new family. 

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