Life With Father?

From the Texas Lawyer, July 5, 1993

In a major family law change, the Texas Supreme Court June 30 recognized a biological father's constitutional right to establish paternity even when the child is born to a married couple.
In In the Interest of J.W.T., No. D-1742, a 7-2 majority of the court overturned the longstanding "marital presumption" that has prevented some biological fathers from suing for their parental rights. J.W.T. was conceived while the child's mother and husband were separated.
The biological father, identified as Larry G., had helped the mother pay for prenatal care before she and her estranged husband reconciled and dismissed their divorce action. A paternity test showed a 99.4 percent probability that Larry was J.W.T.'s biological father.
Justice Doggett wrote that the trial court's denial of Larry's standing to sue violated the due course of law guarantee contained in article 1, section 19 of the Texas Constitution. Doggett discussed social changes, such as divorce and single parents, that have diminished the social stigma of illegitimacy. The stigma is the historical basis for denying paternity suits when a child is born to an intact marriage.
"Perhaps this asserted interest had merit in an earlier era when the true biological father could not be established with near certainty and when illegitimacy carried a significant legal and social stigma," Doggett said. "Since this is no longer the case, the focus should more properly be directed toward what is best for the child - it may be in [the] best interest of the child to allow development of a relationship with the natural father and it may not."
The majority made it clear that courts should consider a father's actions. "We thus believe that a father's interest in establishing a relationship with his biological child is constitutionally protected when accompanied by the father's early and unqualified acceptance of parental duties."
Larry was represented by Tom Oxford, managing attorney for the Beaumont office of East Texas Legal Services. Oxford said the ruling gives a more expansive reading of the Texas Constitution on this issue than the U.S. Supreme Court gave to the federal due process clause in a 1989 case, Michael H. v. Gerald D., 491 U.S. 110.
Justice Enoch dissented, saying the majority "ignores a powerful countervailing interest, the family's right to be free from unwanted interference and disruption by state sanctioned attempts to delegitimize the children of a marriage."
Justice Cornyn will write a dissent later. Later concurring opinions are due from Chief Justice Phillips and Justice Hecht.
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