Says Justice Devine: LGBT marriage benefits denied, procreation encouraged

pidgeon dissent by devineThis week, Texas Supreme Court denied review, upholding a lower court’s ruling that cities cannot deprive married same-sex LGBT couples the benefits it provides to opposite-sex couples. However, Justice John P. Devine filed a dissenting opinion to the denial of review.

Read the dissenting opinion here Pidgeon v. Turner.

Justice Devine disagreed with the denial of review, arguing that the high court should have heard the case. “Marriage is a fundamental right. Spousal benefits are not,” he wrote in his dissent. Further, he urged that the state has an interest in encouraging procreation and that offering benefits to opposite-sex couples would encourage procreation within marriage.

“After all, benefits such as health insurance provide financial security as couple decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s).”

Thus, Devine argues that Texas may recognize the differences between same-sex and opposite-sex spouses as it relates to employment benefits without violating the constitutional protections of same-sex marriage equality.

Slate’s Mark Joseph Stern, who first wrote about the dissent, notes Devine’s “argument is profoundly insulting to nonbiological children: It suggests that a gay employee’s nonbiological child, birthed by the employee’s same-sex spouse, is not as worthy of state ‘resources’ as an employee’s biological child would be.” Stern rightly calls Devine’s opinion “an ominous sign that conservative judges are striving to work around Obergefell v. Hodges and affirm the constitutionality of state-sponsored anti-gay discrimination.”

The problem I have with Justice Devine’s dissent is the complete disregard for parents of either orientation that adopt children. Adopting children is a high calling, and for some a necessary calling to enable them to have children. And legally and morally, adopted parents are every bit as much a parent as a natural parent. I also disagree with Justice Devine’s assessment that adopting children or having children through assisted reproduction necessitates removal of one or both parents. In many situations, children don’t have both parents – that isn’t an option. Justice Devine’s logic shows a lack of connection to any part of society that doesn’t involve a long-term, monogamous, heterosexual relationship. As much as that might be the “Leave It To Beaver” ideal of the 1950’s, that isn’t the reality of our current state of society.


O’Neil and Wysocki among best divorce lawyers in Dallas Texas area

Michelle O'Neil and Michael Wysocki

O’Neil and Wysocki 2016 Texas Super Lawyers

Michelle O’Neil and Michael D. Wysocki, Shareholders of O’Neil Wysocki, P.C., have been named to the 2016 Texas Super Lawyers List for family law. Only 5% of lawyers statewide are recognized. O’Neil was also named as one of the Top 50 Women Super Lawyers in Texas for all practice areas, Top 100 Texas Super Lawyers for all any practice areas, and one of Top 100 D/FW Super Lawyers for all practice areas, recognizing her as one of the best lawyers of any kind in the State of Texas. This is the 5th year of recognition for O’Neil and the 6th year of recognition for Wysocki.

Super Lawyers is one of the most prominent and respected rating services in the industry. Each year the organization’s patented selection process is used to identify the most accomplished and trusted legal counselors in every state and major region in the country.

The Super Lawyers selection process includes:

  • Nominations from peers or the Super Lawyers research team
  • Independent research on candidates by the Super Lawyers team
  • Peer evaluation by a blue ribbon panel of notable attorneys
  • Final selections based on these findings

Ultimately, the Super Lawyers lists represent a mere 5% of all licensed attorneys practicing in each state. Attorney O’Neil’s additional honors mean that Super Lawyers has determined she is among the best of the best lawyers in Texas.

For both Attorney O’Neil and Attorney Wysocki, this is not the first recognition from Super Lawyers. Attorney O’Neil has been chosen for the Texas Super Lawyers list each year since 2011 – five years straight – and has been named to the Top 50 Women Texas Super Lawyers, Top 100 Texas Super Lawyers, and Top 100 D/FW Super Lawyers lists for three years in a row.

Attorney Wysocki has received recognition from Texas Super Lawyers organization for six years, three on the Texas Rising Star list in family law by Texas Super Lawyers, and three additional years as a part of the Texas Super Lawyer list in family law. The Rising Star list only recognizes about 2.5% of young lawyers statewide.

These are not the only accolades for the O’Neil Wysocki firm. Attorney O’Neil has also been named among the Best Lawyers in America for 2016 and 2017. Attorneys Eric Navarrette, Ashley Russell, and Chrysandra Bowen have been named to the 2016 Texas Super Lawyers Rising Star in family law list, which is given to only about 2.5% of young lawyers in the state. (Note: Of the 2.5% of young lawyers recognized statewide this year, 3 work at our firm!) Navarrette has maintained this honor since 2013, Russell since 2011, and Bowen since 2015. Attorney Jere Hight has previously been named to the Texas Super Lawyers Rising Star in family law list as well.

Corpus Christi Court of Appeals reverses dismissal of LGBT non-parent’s custody case

This week, the Corpus Christi Court of Appeals reversed a case out of Victoria regarding the rights of a same-sex nonparent. The trial court had dismissed the suit seeking parental rights filed by the nonparent spouse of a same-sex lesbian couple.

Background: The couple was in a same-sex relationship and decided that one partner would have a child using sperm from a donor. The partners signed a donor agreement which stated, among other things, that the parent of the child “shall have absolute authority and power to appoint her life partner as guardian for the child, and that the mother and guardian may act with sole discretion as to all legal financial, medical and emotional needs of the child without any involvement with or demands of authority from donor and donor’s wife.” The agreement further stated that the parent and nonparent “intended to go through the process known as second parent adopting” for the child.

After the child’s birth, the mother and nonparent parented the child together for four years. After they broke up, the parent and nonparent entered into an agreement providing a possession schedule for the nonparent, with consistent reassurance from the mother that the nonparent was a mother for the child and there was no need for court intervention.

Nonetheless, the nonparent partner elected to seek court remedies, asking to be appointed a conservator of the child with an allocation of rights/duties and a possession schedule. The mother sought to dismiss the suit, stating that the nonparent lacked standing to sue.

Standing to sue must be established in any case before proceeding on the merits of the matter, showing that the person bringing the suit has a connection to the matter the basis of the suit.

The nonparent mother claimed that she had standing in this case under section 102.003(a)(9), which provides that a person, other than a foster parent, has standing to bring a suit affecting the parent-child relationship if that person “has had 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.” Texas Family Code section 102.003(a)(9).

Facts cited by the nonparent mother in support of her standing included:

  1. Both spouses agreed to having a baby,
  2. the couple would co-parent the baby once it was born,
  3. a donor provided the sperm,
  4. the parties signed a donor agreement documenting the couple’s intent that the nonbiological parent adopt the baby,
  5. The mother agreed that the nonparent would adopt the child,
  6. the nonparent spouse resided with the child for the first four years of the child’s life,
  7. The mother gave the child the nonparent’s last name,
  8. the child called the nonparent “mommy,”
  9. The mother signed a document giving the nonparent spouse temporary custody of the child,
  10. The mother gave the nonparent the legal right of control over the child, the authority to make decisions on behalf of the child, the right to physical possession of the child, the right to make decisions of legal significance for the child, and the right to make educational decisions concerning the child,
  11. the nonparent spouse had actual care, control, and possession of the child for at least six months, and
  12. the child filed her petition within ninety days of that period.

So, based on these facts, the Corpus Christi Court of Appeals found that the nonparent provided enough facts to raise a question about her standing, sufficient to survive the motion to dismiss. They reversed the trial court’s judgment dismissing the case and remanded back to the trial court for trial.

FROM MICHELLE: There is a definite split in the courts of appeals across the state as to what facts show that a nonparent had actual care, control, and possession. It isn’t enough to show that a nonparent had possession of a child, even at the acquiescence of the parent. The evidence must go further and show that the nonparent somehow exercised control over the child. Different courts of appeals in Texas disagree over the amount of evidence that rises to this level. I handled the In re MKS-V case on a very similar issue, which at the time was the first case in Texas and in the Dallas Court of Appeals to establish standing for an LGBT, lesbian nonparent. Of course, in 2009 when MKS-V was decided, the climate for LGBT custody cases was very different than it is today. This case will be one to watch to see if it goes to the Texas Supreme Court for clarification of the differences in the holdings of the different courts of appeals on the same issue.

(I know the lawyers on both sides of this case. I have not been consulted by either side regarding the merits of this case.)

Read the opinion of In re R.E.R. here: 16-0825-Memorandum-Opinion

Fisher Price’s proud parenting campaign increases visibility of LGBT parents

LGBT parenting photo gallery

Fisher Price and Proud Parenting photo gallery of LGBT parents

Have you seen the Fisher Price photo gallery aimed at increasing the visibility of LGBT parents? The toy company teamed up with Proud Parenting, an online community forum for LGBT parents, to launch their Proud Parenting LGBT Family Photo Gallery. The project features a curated photo collection of LGBT parents and their families that will be featured on digital media outlets and promoted by Gay Ad Network on websites and mobile apps. Through increasing the visibility of positive examples of LGBT parents, the editor-in-chief of Proud Parenting Jeff Bennett hopes to lead the way for a new generation of families. There are an estimated 3 million LGBT Americans who are parents and 6 million Americans who have a parent who identifies as LGBT.

Fisher Price is owned by Mattel whose brands also include Barbie, Hot Wheels, and American Girl.

One reason this type of ad campaign is so important is that it provides the community with images of people “like us” that heterosexuals and homosexuals alike can look to for positive role models. LGBT families interested in participating can submit their photos through the Proud Parenting Facebook page:

Hat tip to Huffington Post Gay Parenting article Fisher-Price And Proud Parenting’s New Campaign Aims To Increase Visibility Of LGBT Parents

10 things you shouldn’t ask a lesbian mother

lesbian motherAs mainstream society has trended toward embracing gay and lesbian relationships, some unfamiliar people can ask questions that may seem insensitive. Much like any heterosexual couple, there are topics that are private and personal. Both parents are important and equal, no matter the science associated with the creation. Like heterosexual parents, lesbian parents have children born of biological means, surrogacy, or adoption.

Here are the 10 things you shouldn’t ask a lesbian mother:

Which one of you is the mother?

Who is the biological mother?

Where did you get the sperm?

Is the dad in the child’s life?

What do you know about the sperm donor?

Isn’t your child confused about what to call you?

Doesn’t your child miss out on doing “dad” things, like playing ball and using tools?

What did you write under “Father” on your child’s birth certificate?

Where is your child from?

Are you worried your child will get teased because you’re gay?



Zales jewelry store introduces line of gay wedding jewelry for LGBT couples

Zales loveandpride gay wedding jewelryZales, a national jewelry store, brings a line of wedding rings designed for LGBT couples. According to their press release, the jewelry stores have recently started carrying Love and Pride, a collection of gay wedding jewelry designed by out artisan Udi Behr, in dozens of stores — in the U.S. and Canada.

“Now, the LGBTQ community knows that Zales stands with Love and Pride and with them,” says Behr. “The idea that malls and retail stores across America will have Love and Pride displays for wedding and engagement rings and other LGBTQ-friendly jewelry is a milestone.”

“As we reach out to the LGBT community across the country, Zales has been an amazing ally, providing training and support to all their stores to provide the most inclusive and thoughtful experience for couples who are looking for beautiful jewelry that speaks to their hearts as they marry,” he added.

Love and Pride’s jewelry collections include engagement, commitment, wedding and anniversary rings. Behr has previously partnered with high-end retailers including Fred Segal and Saks 5th Avenue. The Zales collaboration is their largest to date, and comes one year after the Supreme Court ruling brining marriage equality to all 50 states.

With the newness of gay marriage, comes the lack of etiquette and tradition associated with gay weddings. Do you get an engagement ring, wedding ring only, or both? Should both spouses get a ring? Should they be the same or different? The good news is that the lack of tradition and etiquette leaves couples to do what is best and meaningful for them.

Here are some things to think about when picking out wedding rings from How To Buy a Lesbian Wedding Ring:

  1. Decide on your budget. Don’t break the bank, but remember that your wedding band is something that will be with you always.
  2. Decide on a style. Do you want something traditional? Or something with rainbow colors? Or, would you prefer something more meaningful to you? Do you want matching bands or for each spouse to pick out a unique band for the other?
  3. Decide where to shop. Online, traditional rick-and-mortar store, or a shop that caters to the LGBT community?
  4. What material do you want your rings to be? Gold, silver, platinum are the traditional choices, but another material may be meaningful to you.
  5. Will you have engraving? Is there a saying, lyric, or verse that means something to you?

Debunking 5 gay and lesbian parenting myths

myth realityI just discovered this website called How Stuff Works. Its my new favorite go-to website. Check out this article about the 5 myths about LGBT gay and lesbian parenting or the 5 myths of gay parenting video . The author Cristen Conger sets out to debunk the assumption of many people that allowing an LGBT couple to raise a child endangers the child’s healthy development in many ways. I like the phrasing he uses in framing the negative assumption: “negative views on same-sex parenting tend to liken a couple’s sexual orientation to a bacterial contagion that’s passed along from adults to kids, thus altering the younger generation’s self-perceptions of gender and setting them up for social and psychological problems along the way.”

Myth 1: Scientific evidence doesn’t support same sex parenting.

Reality: Research conducted on LGBT parents and their children has been overwhelmingly positive, causing many professional organizations such as the American Medical Association, American Psychological Association, American Association for Marriage and Family Therapy, American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry to give gay parenting their stamp of approval. The American Academy of Pediatrics stated, “children who grow up with one or two gay and/or lesbian parents fare as well in emotional, cognitive, social and sexual functioning as do children whose parents are heterosexual”.

Myth 2: In order to thrive, a child needs both a mother and a father.

Reality: The American Psychological Association has stated that parental gender has little bearing on kids’ well-being. The most influential variables were resources, commitment to child care, not sexual orientation.

Myth 3: Children with gay parents encounter more bullying or isolation, causing them to be more depressed and form fewer friendshps.

Reality: However, the University of California San Francisco collected data on children that were bullied and followed them 7 years later. They found no lasting psychological damage from any parent-related persecution. Other studies over 25 years have shown there is no difference in the rate of anxiety, depression, substance abuse or socialization of children raised in LGBT families over heterosexual-headed households.

Myth 4: Being raised by homosexual parents will make the kids homosexual.

Reality: Homosexual orientation is not a disorder or illness and cannot be contagious. Children do not inherit the identical gender and sexual identities of their parents. Although children raised by lesbian couples tend to identify less with the pink-and-blue gender roles, a majority ultimately identify as heterosexual in adulthood.

Myth 5: Same-sex couples raise children and manage households identically to straight parents.

Reality: There are some unique hallmarks of lesbian parenting, including more equal division of chores and childcare and greater parent-child emotional openness, that can be of greater benefit to children’s long-term emotional development over heterosexual households. Just as not all heterosexual couples make identical decisions or have uniform household rules, neither do LGBT parents.

Thus, the scientific evidence shows that there is more than one road to raising a happy, healthy child. As society’s definition of “family” has broadened beyond the heterosexual nuclear unit, negative stereotypes about gay and lesbian parenting are falling by the wayside.

Healing Homophobia

Healing Homophobia

Healing Homophobia Neil Patrick Harris

Homophobia is defined by Merriam Webster dictionary as “an irrational fear of, aversion to, or discrimination against homosexuality or homosexuals.” So, someone who denies being homophobic but has an irrational aversion to homosexuals raising children is, by definition, homophobic.

Discrimination against homosexual parents raising children is irrational because the overwhelming scientific evidence supports the consensus that children of gay and lesbian parents are as healthy and well-adjusted as children of heterosexual parents.

It does no good, however, to call out a Facebook friends as a “homophobe”. Instead, using positive influence can heal the negative influence like an infection. It is not homosexuality that needs healing, but the homophobia. But, how? Reverend Susan Russell opines on HuffPost that having brave men and women with the courage to live their example openly and honestly, showing good, real example of homosexual couples. And, having those same people embrace those outside of their community to educate and influence those people to a more enlightened outlook will do more to heal homophobia than labeling others as “homophobes”. Positive experiences, including those depicted on television and in movies will have a greater effect than negative name-calling. In this way, Ellen Degeneres and Neil Patrick Harris have done more by example to heal homophobia in our society than any court opinion ever could.

How do you think we can heal homophobia?

Recognizing LGBT domestic abuse

LGBT domestic abuse We don’t generally think of domestic violence in same-sex relationships. Society views the stereotypic domestic violence victim as a passive small woman being assaulted by a large overbearing man. But, domestic violence occurs in same-sex relationships too, and LGBT domestic abuse  victims are generally more isolated than victims in other walks of life.

What does LGBT domestic abuse look like?

As with heterosexual relationships, a gay couple may start their relationship happy and loving. Over time, one partner may become emotionally manipulative, which leads to physical aggression. Behaviors like wrist-twisting while holding hands, pinching an arm during a fight, or hitting are all forms of domestic violence that a person in a same-sex relationship may suffer the same as a person in a heterosexual relationship.

One victim stated, “How do you say to your friends, ‘My girlfriend rapes me’ when their only mental definition of rape is a man forcing his penis inside a woman’s vaina? How do you say you were assaulted when it comes back to the idea of ‘that doesn’t count’? Well, it does count.” (See This is what domestic violence is like when you’re LGBT by Patrick Strudwick, BuzzFeed News.)

A 2010 study from the Centers for Disease Control and Prevention, released again in 2013 with new analysis discovered that the lifetime prevalence of rape, physical violence, and/or stalking by an intimate partner was 43.8% for lesbians and 61.1% for bisexual women. For gay men, the statistics showed 26% for gay men and 37.3% for bisexual men. In the same study, the CDC determined that lesbians and gay men experience rates of domestic violence and sexual violence equal to or higher than those in heterosexual relationships.

Hurdles to getting help for LGBT domestic abuse victims?

The abuse is hard to spot, says May Krukiel, director of residential services for domestic violence shelter Hope’s Door in New York, because with same-sex couples, the partners frequently have the same social network, which can lead to the abuser alienating the victim from the social supports. A gay person may also feel isolation and vulnerability from social support and from mainstream society in general, making it hard to seek help. Also, Krukiel says, many gay and lesbian people feel pressure to have their relationships appear perfect to avoid criticism from outside the community.

Coming out is also a key issue. “How do you tell anyone you are living in fear from your partner if no one knows you’re gay?” questions Jo Harvey Barringer, CEO of Broken Rainbow, formerly a national LGBT domestic abuse charity, which recently closed due to lack of funding. “About 85% of callers to our [domestic abuse] helpline have a partner that will use the threat of outing them to colleagues, family, or kids as a form of control,” says Barringer. And, to make it more difficult, to seek services in the mainstream, the victim must also come out.

One area of domestic abuse unique to the LGBT community is the trend of threatening to reveal HIV status or withhold HIV medication between gay male partners or withholding of hormone treatment in transsexual couples.

What can we do to help LGBT domestic abuse victims?

Local police departments need to be trained to handle such reports of domestic violence, as they are often the first responders that victims meet. Also domestic violence awareness campaigns and service providers could expand their reach to be more inclusive of victims that do not match the stereotype by refocusing educational and outreach campaigns away from linking masculinity with violence and acknowledging that violence crosses all gender, sexual orientation, and economic lines.

For more reading on this topic, see:

UPDATE: The LexBlog Network gave this post a Top 10 blog post of the day award! Thanks LXBN for the recognition! Check out their post Top 10 in Law Blogs: Brexit, Online Accounts, Labor Union.

Transgender parenting — Non-biological psychological parent denied standing to sue for paternity, conservatorship, and possession

The San Antonio court of appeals recently decided a case about transgender parenting, including paternity, conservatorship and possession. In re N.I.V.S., 2015 WL 1120913 (Tex. App. – San Antonio 2015, ___).

In that case, the Father was born female but self-identified as male and had been raised as a boy. When Father and Mother met, Mother knew that Father was born pic

The two began a romantic relationship, and during the relationship, Mother adopted two. The Children referred to Father as their father, and Father was known as the Children’s father to family, friends, school officials, and church officials. When the Children were six- and four-years old, Father quit his job to be a stay at home parent. Three years later, Mother and Father separated, and Father moved out of the family home.

He continued to care for the Children after school, in the mornings, and on weekends. Nearly three years later, Mother refused to allow any contact between Father and the Children. About a week later, Father obtained an order to legally change his female birth name to the masculine name he had gone by since he was a Child. A few weeks later, Father filed a paternity suit seeking to be named the father of the child and seeking joint managing conservatorship and equal periods of possession and access. At the time he filed suit regarding the children, he was still legally a female, but he obtained an order changing his identity from female to male after the suit was filed.

Mother filed a motion to dismiss Father’s petition for lack of standing, which the trial court granted. Father appealed, asserting standing under Tex. Fam. Code § 160.602(a)(3), § 102.003(a)(8) and (9), and under the common law doctrines of in loco parentis, unconscionability, estoppel, and psychological parent.

The San Antonio court of appeals affirmed the dismissal of the case. The court found that he lacked standing to sue at the time the suit was filed as well as thereafter.

One reason for the ruling is that a paternity suit may only be filed by a man. The Texas Family Code § 160.602(a)(3) gives standing to maintain a proceeding to adjudicate parentage to “a man whose paternity of the child is to be adjudicated.” Additionally, The Texas Family Code § 102.003(a)(8) gives standing to file an original SAPCR to “a man alleging himself to be the father of a child filing in accordance with Chapter 160….”

The Texas Family Code defines a man as a male of any age, but the Family Code does not define “male.” The court cited to Webster’s definition of a male as an individual with “gametes…which fertilize the eggs of a female.” Black’s defines male as “of the masculine sex.”

The order changing Father’s identity was signed about a month after his petition to adjudicate parentage. Thus, at the time Father filed his petition, he lacked standing under both Tex. Fam. Code § 160.602(a)(3) and § 102.003(a)(8) because on that date, Father was still legally a female and could not be defined as “a man” under the Texas Family Code.

The other ground for standing under Texas Family Code § 102.003(a)(9) is that he is a person, other than a foster parent, who has had 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.

Here, Father had an active role in the Children’s lives while he was still in a relationship with Mother. However, after their separation, which occurred almost three years before he filed suit, Father was not as involved with the actual care, control, and possession of the Children. The Children resided with Mother. Father attended some doctor’s appointments, but Mother was always also present. Father did not authorize any medical treatment or make educational decision for the Children after he and Mother separated. So, the court of appeals held that he did not exercise “actual care, control, and possession” of the child to provide standing.

Last, Father claimed standing under common law parenting theories, including that he was a psychological parent of the child. However, no Texas cases have ever allowed a person to have standing based on these common law doctrines.

So, the court of appeals dismissed his suit because he lacked the initial requirement of standing to sue.

The hard part of the analysis in this case is that, even if he had won standing to sue, his likelihood of success in obtaining court ordered possession is slim. The reason is that even if he had standing to sue, at the final trial, he would have to show the biological parent unfit to parent the child in order to impose court-ordered access over the objection of the parent. This is the doctrine of the constitutional right to parent without interference from third parties provided by the US Supreme Court in Troxel v. Granville. It is a very very large hurdle to overcome for most nonbiological parents.

The lesson to learn from this case for all nonbiological psychological parents is to adopt the child of your partner before the relationship between you and your partner ends. The courts cannot sever a legally adopted parent/child relationship. Otherwise, you are not a parent and likely have a hard road to impose an involuntary relationship against the parent’s wishes.