Common law marriage for same-sex couples

I still get questions about how Texas’ informal (aka common law) marriage statute applies to same-sex couples prior to the date that the Obergefell opinion was released. Remember that Obergefell found that the provisions of the Defense of Marriage Act prohibiting marriage between couples of the same sex are unconstitutional, thus legalizing same-sex marriage.

The requirements for an informal (aka common law) marriage in Texas are 1) agreement to be married, 2) holding out as married, and 2) cohabitating in Texas. Once married, there is no “informal divorce” – the couple must proceed with a regular divorce proceeding under Texas law.

What happens if a couple performed the elements of a Texas informal marriage prior to the effective date of Obergefell? What if the couple was calling themselves marriage starting some time way before same-sex marriage was legalized, including behavior that checks off all three informal marriage elements?

The answer is – or should be – that the informal marriage statute applies to same-sex couples just as any other couple in Texas. The fact that Obergefell found the underlying law unconstitutional means that the law was void as if the law never existed. If the law never existed, then same-sex marriage doesn’t really have a “beginning” date. So, if a couple started acting like they were married, calling each other husband or wife some time back, acting married to all their family and friends, and lived together in Texas, then they may very well be informally married. An actual agreement to be married can be inferred from the conduct.

The real wrinkle comes if a couple met all of the elements of an informal marriage, but broke up some time before Obergefell and then moved on to another relationship. While Texas does not have informal divorce, if the parties are separated for 2 years then the law presumes that there was never an agreement to be married.

A few months ago, South Carolina affirmed this concept, finding that the Obergefell opinion applies “retroactively”. The result of the opinion was that a recently separated same-sex couple were common law married since 1987. See Can same-sex couples be common law married? (I think the word “retroactive” is imprecise, since a finding that a law is unconstitutional actually erases the law totally, but I’m being a little nit-picky here.)

Also, Pennsylvania upheld a common law marriage between a same-sex couple, rejecting a trial court’s ruling that it was “legally impossible” to form a same-sex marriage prior to the Obergefell ruling. See Court in another state recognizes pre-Obergefell common-law marriage between gay partners.

 

LGBT parents face unique legal issues

 

 

 

There are two common situations in which LGBT parents face custody cases. The first involves a time when a person enters into a different-sex marriage and has children, but later divorces and discovers that he or she is gay, lexbian, bisexual, or transgender. This situation comes about frequently and many LGBT parents have children as a result of hetero-sexual marriages. The heterosexual parent may try to gain an advantage in the custody situation by asking the court to consider the sexual orientation or gender identity of the LGBT parent. Many judges or jurors remain biased and could consider the LGBT parent’s orientation or identity as a negative factor in determining parenting orders.

The second situation in which LGBT parents face custody cases is when a same-sex couple decides to have or adopt a child together and then separate. Often, one member of the couple is the legal parent, and the other member of the couple has no legal relationship with the child. This presents unique legal issues that are not present in most custody disputes between heterosexual parents.

A parent’s sexual orientation should be irrelevant to parenting determinations, including custody and visitation, unless the parent’s actions are actually directly harming the child. The mere possibility that a child might experience future societal discrimination is not enough to establish actual harm. It must be shown that there is specific evidence of direct harm.

The legal rights of a “parent-like” relationship between a child and a person without a legal parental relationship with a child is not clear under Texas law. Many factors weigh in the consideration for whether such a person could obtain a court ordered relationship over the objections of the legal parent or parents. Such considerations include the quality and quanity of access between the “parent-like” person and the child, the amount of parenting control that is exercised by the “parent-like” person relinquished by the legal parent, and how quickly the “parent-like” person seeks to establish the relationship at the courthouse.

 

Same-sex marriage has highest approval rating in history

ss marriage trendGallup conducted their annual poll of Americans’ support for same-sex marriage. The results… 64% of Americans think same-sex marriage should be legal. This is the highest approval rating in US history. In 1996, when Gallup first conducted this poll, only 27% of Americans approved.

This year’s poll also revealed that, for the first time, a majority of Protestants support gay marriage at 55%. Of Catholics, 65% support gay marriage this year.

Among political parties, 74% of Democrats and 71% of Independents support same-sex marriage, while only 47% of Republicans favor it. However, the Republican numbers in favor have tripled since 1996, when they were at 16%.

Setting aside the question of the legality of marriage between gay couples, Americans support the legality of gay relationships at a level of 72% this year, up from 43% in 1977, the first year that issue was polled.

This poll was based on telephone interviews conducted in early May 2017 with random sample of over 1,000 adults across America. The margin of error is +/- 4%.

Will Obergefell expand the definition of family in the wake of expanding marriage?

ohio state moritzI ran across an interesting law review article from Susan Frelich Appleton out of Ohio State University’s Moritz College of Law called Obergefell’s Liberties: All in the Family. The article joins the debate about whether the Obergefell case only protects liberty against the interference by the state regarding the right to marry (public liberty) or whether it can also compel the affirmative support or government action (private liberty). The article also explores the theoretical relationship between constitutional law and family law that the US Supreme Court’s liberty rulings have forged. Much of the article is an analysis and high level theoretical breakdown of the Obergefell opinion and cases relied upon by the Court for its opinion.

The conclusion of the article bears consideration in pointing out that the fear of many scholars in the wake of Obergefell was that there would be a trend toward “glorification of marriage” to the marginalization of other forms of family and relationships, inviting discrimination against nonmarital relationships. The author points out that decisions in Illinois and Michigan support this fear. However, to the contrary, it seems there is another scenario actually emerging where the expansion of the right to marry serves as a template for other relationships that could have private support obligations attached.

Constitutional protection of the relationship between nonmarital fathers and their children, once vulnerable (or even unacknowledged) under the “old illegitimacy,” shows how such expansion can occur and how such developments can facilitate neoliberal objectives. A more recent illustration can be found in some state courts that have extended parental status, including support duties, to partners of parents in the absence of biological, marital, or adoptive ties and have recognized both the financial and constitutional considerations at work in such situations. If this trajectory continues, those who have pushed for affirmative legal recognition of polygamy, of friendship, and of other intimate connections that could supply new private obligations just might succeed in their efforts.

The author questions whether society should pursue this bath in expanding the legal notion of family to provide expanding duties of support between nonmarried people, but acknowledges the conversation.

 

LGBT film Moonlight wins best picture

MOONLIGHT movie posterForget about all the other nonsense, let’s celebrate that an LGBT film won best picture at the Academy Awards! Moonlight presents the life of the main character Chiron and the struggles he faces with his own sexuality as well as the physical abuse that he receives as a result of it.

The movie begins in Miami when a Cuban drug dealer Juan finds Chiron, a withdrawn child, who goes by the nickname “Little”, hiding from a pack of bullies. Chiron continues to spend time with the drug dealer, but the drug dealer’s wife abuses him. Chiron asks Juan was is a “faggot” that he’s been called at school. Juan tells him it’s okay to be gay and not let people mock him for it.

In the second phase of the movie, Chiron juggles avoiding a bully and spending time with Juan’s girlfriend after Juan’s death. Chiron’s mother has become a crack-addicted prostitute. Chiron and a friend Kevin visit the beach and discuss their ambitions, then they kiss and explore their sexuality together. Unfortunately, the bully pressures Kevin to participate in bullying Chiron. Chiron takes revenge against the bully and gets arrested.

As an adult, Chiron begins to go by the nickname “Black” and deals drugs in Atlanta. Chiron reunites with Kevin after Kevin apologizes. Chiron and Kevin talk about their lives. The movie ends with Kevin holding Chiron in a tender embrace while they flashback to the night on the beach.

The movie is based on a previously unpublished play called In Moonlight Black Boys Look Blue. Filmed in Miami, Florida, the movie premiered at the Telluride Film Festival on September 2, 2016. The film was released in the U.S. on October 21, 2016, and has grossed $26 million.

Moonlight won Best Motion Picture – Drama at the 74th Golden Globe Awards, and was nominated in five other categories. The film received eight Oscar nominations at the 89th Academy Awards, winning Best Picture, Best Supporting Actor for Mahershala Ali, and Best Adapted Screenplay.

Moonlight became the first film with an all-black cast, the first LGBT film, and the second lowest-grossing film domestically produced to win Best Picture award. The film’s editor, Joi McMillon, became the first black woman to be nominated for an editing Oscar. Ali became the first Muslim actor to win an acting Oscar. The film was produced at a budget of $1.5 million.

First Openly Gay Family Court Judge in Texas

judge jim evansHouston attorney Jim Evans was appointed 507th Family Court associate judge on January 1,2017, making him the first openly gay man to serve as a judge in family court in Texas. “There are openly LGBT judges in the criminal and civil courts,” Evans says. “But this is a first for Texas.” In fact, he is the 12th openly LGBT judge in the state.

For the LGBT community, it is an important step for family courts to address deeply personal issues such as adoption, custody, property distribution, and child support for the LGBT community.

Judge Evans will be serving under newly-elected Democrat Julia Maldonado, who won 52% of the Harris County vote. The associate judge position is appointed by the district judge upon taking office to assist in handling the court’s caseload.

Evans ran as a Democrat for the 308th Family District Court in 2014. Having won the Democrat primary, he lost in the general election to the Republican candidate. During the campaign, the Houston Chronicle endorsed Evans saying, “A graduate of the University of Houston Law Center, Evans, 47, has a pastor’s compassion that comes from working as a Baptist minister, not to mention a master’s degree in religious studies. A personal experience of perceived discrimination against Evans and his husband in the family courts led Evans to run for a position on the bench. He brings his decade of legal experience to bear on his passion for more equitable courts.”

It was important to Evans to have an openly gay person on the bench because, he said, none of the Republican family court judges in Harris County would grant an adoption in a case where the prospective parent is an “out” gay or lesbian. He wanted to change the negative treatment that gays and lesbians received in the Harris County family court system.

Evans graduated from Houston Baptist University, majoring in Spanish and history. After graduating from college, Evans went to Southwestern Baptist Theological Seminary in Fort Worth to earn a master of education degree. In2000, Evans entered the University of Houston School of Law, where he was in the top 10% of his class and selected to write for the school’s law review. He graduated law school in 2003.

In 2007, Evans came out as gay. A year later, he began pursuing his passion for family law. Then, he married his love William Flowers in 2010 in Connecticut.

See Wolf, Brandon, Houstonian Becomes First Openly Gay Family-Court Judge in Texas, Out Smart: Houston’s LGBT Magazine February 1, 2007, http://www.outsmartmagazine.com/2017/02/houstonian-becomes-first-openly-gay-family-court-judge-in-texas/ .

The number of LGBT identifying adults rises

lgbt flag picGallup did a survey in 2016 which shows that more than 10 million American adults now identify as LGBT, making 4.1% of the population LGBT in 2016. That’s up from 3/5% in 2015. Millennials, who are viewed as more open-minded and accepting of different lifestyles, are to be credited for the increase. Millennials, born between 1980 and 1998, identifying as LGBT rose from 5.8% in 2012 to 7.3% in 2016. On the other hand, the percentages among Generation X and Baby Boomers declined slightly. Even so, these numbers only reflect Americans who have come out as LGBT publicly.

See Gallup Poll In US, more adults identifying as LGBT

See related article More than 10 million Americans now identify as LGBT

What is a pregnant woman supposed to look like?

domo picA married lesbian couple decided to have a baby with the help of a sperm bank. Their Youtube videos have earned them over one million subscribers. Domonique has always wanted to have a baby and was thrilled when she learned from her doctor that she is pregnant with a baby boy. However, the internet is full of haters. The haters criticized Domonique’s pregnancy because she looks too masculine and “dresses like a dude”. The couple’s response…. To dance. They filmed a Youtube video of themselves “dancing the haters off” which has been viewed over 1.2 million times as of the writing of this blog post! They also took to Instagram with positive pictures of the pregnancy. Domonique said, “People need to see a new side to pregnancy and not what’s ‘normal’.”

I don’t give a crap who pees in the stall next to me in the bathroom

bathroom billTexas is making international news again – this time for Lt. Gov. Dan Patrick’s newly filed bathroom bill seeking to require people to use the bathroom according to the gender on their birth certificate. The Lt. Gov. renamed it as the “Women’s Privacy Act”. He went on to lay out his argument for it: “Transgender people have obviously been going into the ladies’ room for a long time, and there hasn’t been an issue that I know of,” he said. “But, if laws are passed by cities and counties and school districts allow men to go into a bathroom because of the way they feel, we will not be able to stop sexual predators from taking advantage of that law, like sexual predators take advantage of the internet.” (See story on SB6 2017 Leg. on WFAA.com)

Here’s the problem I have with this law… no one gives a crap. Seriously. The only time in my life that I felt threatened in a bathroom was when a three-time convicted male sexual predator was released from prison (seriously, released!) and made his way into the bathroom in the building I worked in. He hid in the stall in the ladies room, eating a cookie, waiting for the next unsuspecting woman to come in alone. It could have been me, but it wasn’t. He attempted to rape a woman that worked in the office next door. She fought him off, screamed, and was rescued by other women from my office who heard her scream. A group of women in my office gave chase, flagged down a female Dallas police officer who chased him down on the streets of downtown Dallas and arrested him. Girl power! He was not transgendered. He was a criminal. No law on the books would have stopped him or made any difference in what happened.

Transgendered women look like women. They sit when they pee. It’s not like you will lean under the wall of the stall and say “Ah Ha! Caught you standing to pee dude!” The last thing a transgendered woman wants is to be outted as a man. She worked hard putting on her makeup and fixing her hair and dressing to be perceived by all of society, including misogynists like Lt. Gov. Patrick, as a woman. Unless you have a super secret hidden camera in the bowl of the toilet aimed just right, you will probably never know. They’ve been peeing in the ladies room for many years and we didn’t even know.  This law serves only to further discrimination and bigotry against transgender people without any purpose whatsoever.

I am also concerned about the effect of this law on cisgender women – that means they identify with the gender they got when they were born – who don’t look womanly enough for someone’s perceived definition. (See What does it mean to be cisgendered?) This new law just furthers the misogyny that some in our society want to put forward that a woman should look a certain way. If I don’t wear enough makeup, will someone think I don’t look “female enough” to go pee in the ladies room? If I have a short hair cut, will someone think I don’t look “female enough” to go pee in the ladies room? If I don’t have big Texas size boobs, will someone think I don’t look “female enough” to go pee in the ladies room? If I wear certain clothes, will someone think I don’t look “female enough” to go pee in the ladies room? Hold on… I can’t go pee yet… I have to fix my makeup! What more perfect example of misogyny at work in our society than this movement of conservatives to paternalistically protect my privacy.

And on the other hand, if a cisgender male has long hair and maybe a little bit of man-boobs, will some alpha-male in the bathroom use this law to justify harassing that man because he doesn’t look “dudely enough”? Wrong, wrong and wrong. Having a law that condones this behavior is just wrong.

One of my girlfriends has a young daughter and professed support for this bill to keep her daughter safe from male predators in public bathrooms. To her I say, 1) don’t let your young daughter go to a public bathroom by herself, as there are many other larger dangers lurking out there than a transgender woman, 2) don’t be so small minded to think that transgendered women are pedophiles, that’s rude and wrong, and 3) teach your daughter to focus on the right things – people violating your private space in the bathroom no matter their perceived gender or whether their appearance rises to the level of “female enough”. If you are that worried, get self-defense lessons so your daughter has a fighting chance against someone who intends her harm.

Thank you, Lt. Gov., but I don’t want you to paternalistically protect my privacy in the ladies room. Leave me alone and let me pee in peace. And leave everyone else alone and let them pee in peace too. We have enough laws on the books to handle it if someone tries to accost me in the ladies room – it won’t matter if they are female or male at that point.

And, ladies, you know you’ve all done it – snuck into the empty men’s room when the line to the ladies room is too long. Under this new law, you are a criminal for going in the wrong, door-without-a-line.

And, are we supposed to start carrying our birth certificates with us to prove our right to pee in the ladies room? Do they need to be certified copies to prove we didn’t doctor up the gender assignment? Will Lt. Gov. Patrick appoint bathroom monitors across the state to check birth certificates before entry? Will the Lege issue a list of acceptable appearance criteria to check off before we have to prove our gender-at-birth? What does a female look like? What about a male? Maybe Lt. Gov. Patrick could sponsor a fundraiser for his political bank account with a fashion show of acceptable womanly-looking candidates for the ladies room?

You may ask… this is supposed to be a blog about LGBT issues in Texas family law. What does the bathroom bill have to do with that? Well, the “T” in LGBT stands for transgender. And there can be no more basic right to a transgender person than to be allowed to pee in peace. There are many families I’ve talked to who have transgender children that need to pee whether at the Lt. Gov’s office or at school. While we can make light of the ridiculousness of the “Women’s Protection Act”, for many people, adults or children, this is a very real and scary issue. It has meaning for them… and us… society.

Plus, who can blame anyone for wanting to use the ladies room – they are mostly cleaner than mens rooms anyway and generally smell a whole lot better. You know I’m right.

More reading on the topic: Angry Transgender Woman Writes Story About Texas Bathroom Bill, Changes the World

 

 

A Dallas Baptist church votes for LGBT inclusion, and is unincluded

Wilshire-Baptist

Wilshire Baptist Church, Dallas Texas

Wilshire Baptist Church, located on Abrams Road just north of Mockingbird Lane in Dallas, voted November 14, 2016 to include gay and lesbians for full membership, including rights to serve in leadership positions and marry in the church. The measure passed with a vote of 61% of the membership in favor of inclusion. As soon as the church completed its vote, the Baptist General Convention started proceedings to remove the church out of the group because, in its view, gay and lesbians should not be members of a Baptist church.

The pastor of Wilshire Baptist Church, Rev. George Mason, studied the issue of God’s view of gay and lesbians for several months before reaching his own personal decision. He concluded that the passages actually do not say loving homosexual relationships are sinful, but actually condemn abusive sexual practices. He concluded that he would “err on the side of love and grace” in accepting gay members.

Unfortunately, the controversial issue may result in the loss of 100 members who stood in disagreement with the issue.

The Baptist Standard, a weekly digital news journal affiliated with the Baptist General Convention of Texas, reports that the BGCT position is that the Bible teaches any sexual relations outside the bounds of a male/female marriage are sinful. So, any church that affirms other types of sexual relationships choose to withdraw from the convention. (See Two churches face removal from BGCT due to gay issue.)

For more reading, see A Dallas church voted to perform gay marriages, and it’s getting kicked out of the Texas Baptists from the Washington Post and UPDATE: Wilshire Baptist Church votes on accepting LGBT members.

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