On December 12, 2019, a Travis County judge ordered Cheri’s estranged husband to take a DNA test, the legal requirement to confirm that he IS NOT the father of her 4-year-old son. He is not the biological father and was seeking to become the legal father of the boy over the objections of the child’s natural mother.
The mother of the child, Cheri Bergeron, asked Judge Scott H. Jenkens to deny paternal rights of her son to her estranged spouse of seven years, Clay Saunders, because she independently conceived her son using an In Vitro Fertilization (IVF) process that used an anonymous sperm donor while the couple were separated, but still legally married. Bergeron’s court filings state that Saunders not only had no role in the matter, but also he filed papers in June 2016 to declare that he is not the father and is not legally responsible for her son.
The trial to determine Saunders’ legal status as the “presumed father” of Bergeron’s son (Cause No: D-1-FM-13-005391) was scheduled for October 14, 2019 but was postponed to a four day hearing from December 9 to December 12, 2019.
What is a “Presumed Father” in Texas law?
Like many legal statutes, the Texas Family Code that applies to paternity is complicated. But in simplistic terms, a “presumed father” means a man is the recognized father of a child born during the marriage until paternity can be legally confirmed or denied. In normal paternity cases, a DNA test is the definitive method for determining rights for a father. However, the Texas Family Code provides circumstances under which a DNA test can be blocked by the “presumed father.” These statutes date back to the 1980s before the advent of assisted reproduction.
After Separating, Bergeron Wanted a Second Child on Her Own
In June 2012, after eight years, the marriage of Cheri Bergeron and Clay Saunders was dissolving. They stopped living together as husband and wife, and Bergeron filed a petition for divorce in September 2013. However, Saunders contested the divorce, so the couple has remained legally married yet separated to this day.
In the final days before the couple separated, Ms. Bergeron was implanted with two of the couple’s joint embryos, which resulted in their daughter, who was born in January 2013. (A twin brother was born along with their daughter, but the twin did not survive.) A year after giving birth to her daughter, Bergeron found herself wanting a second child, and she informed Saunders of her desire to become pregnant again on her own through IVF. Saunders refused to be part of the process in any way and revoked his consent to use the couple’s joint embryos with Texas Fertility Clinic and Austin IVF.
In late 2014, Bergeron proceeded with an independent IVF process using an anonymous sperm donor. She subsequently became pregnant and gave birth to a healthy baby boy in May 2015.
Saunders Files Legal Papers Stating He’s Not the Father
In June 2016, when Bergeron’s son was 13-months-old, Saunders took formal steps to ensure that he would not be her new child’s “presumed father.” He filed a “Counterpetition for Divorce and a Petition to Adjudicate Parentage,” which declared that he is not the father of Bergeron’s son and is not legally responsible for him. Shortly thereafter, Bergeron executed documents which signified her agreement with Saunders’ demands that he would never have legal status as the father of her son.
However, on July 23, 2019, thirty-seven months after making those filings, Saunders reversed his position and filed an “Amended Counterpetition for Divorce and a Petition to Adjudicate Parentage” to seek legal rights to Bergeron’s son.
A Ruling for Saunders Would Set Legal Precedent in Texas
A ruling for Saunders to be adjudicated as the “Presumed Father” of Bergeron’s son would have marked the first time in Texas history that paternal rights had granted to a man who has previously petitioned the court to declare that he is not the legal father of the child.
The court ordered Saunders to take a DNA test. Saunders declined to voluntarily take the test to confirm or disprove his paternity.
Ms. Bergeron is represented by Jimmy Evans of Evans Law Group. Mr. Saunders is represented by Lindley Bain of GoransonBain Ausley. Tyler Pennington has been appointed as the amicus attorney and is charged with providing recommendations to help the judge determine what would be best for Ms. Bergeron’s son.