Do I need a lawyer who is gay for my same sex divorce in Texas?

keep-calmOne of the challenges that I see in my work as a family law/divorce/child custody attorney in the Dallas LGBT community is the attitude that only a lawyer who is also gay can represent a gay person. In any field, you should want the best professional for your situation as possible. While a lawyer who is also gay may be a great lawyer and may be very good at the issues you are facing, he or she may not be the only lawyer or even the best lawyer for your situation.

If you have a medical condition, would you only want a doctor who is gay to treat you – or would you want the best doctor for your malady? If you wanted to buy a house, would you only want a realtor who is gay to represent you – or would you want the best realtor for the area you are looking in?

Many lawyers, regardless of sexual orientation, have advocated for same sex couples even before the recent expansion of rights for LGBT people by the US Supreme Court. Gay couples have adopted children, had custody arrangements, and broken up relationships for years before the US Supreme Court decided the Windsor case or the Obergefell case (granting recognition for same sex marriages).

For example, in the late 1990’s I represented a couple in a break up and division of property, under the laws at that time called a Partition suit. I represented gay couples who had children and intended for the children to be raised by them as parents. In fact, I represented a lesbian woman in a custody case, resulting in the first appellate decision in Texas granting standing to a lesbian non-biological parent to sue for access to the child. (See discussion about In re M.K.S. opinion here.)

So, what qualities should a person look for in a lawyer for a gay divorce or child custody suit in Texas? First, look for a lawyer who specializes in Texas family law. The Texas Board of Legal Specialization offers certification in Texas family law, which can be standard to ensure that a lawyer has met certain minimum qualifications. Also, research or ask the lawyer about his or her prior experience in LGBT or gay family law issues. Is the lawyer new to the subject or does the lawyer have a track-record of representing people in LGBT or gay issues? Third, do you have a comfort level with the lawyer? Rapport is an important part of the attorney/client relationship. If you don’t feel comfortable talking to the lawyer, he or she will not be a good fit for you. None of those questions involve an inquiry into the lawyer’s personal sexual orientation.


LGBT National Coming Out Day October 11th

national lgbt coming out dayTuesday October 11th is LGBT National Coming Out Day.

On October 11, 1987, half a million people participated in the March on Washington for Lesbian and Gay Rights. The idea of a national day to celebrate coming out came on October 11, 1987 when a half million people participated in a march on Washington D.C. for gay and lesbian rights. Since then, each year on October 11th, LGBT National Coming Out Day continues to promote a safe world for individuals to live truthfully and openly.

Coming out (of the closet) is a figure of speech for LGBT people’s disclosure of their sexual orientation and/or gender identity.

There is no one right way to come out. Throughout the process of coming out and living more openly, it is important for a person to be in the driver’s seat about how, where, when and with whom he or she chooses to be open. The Human Rights Campaign has a Resource Guide to Coming Out to help people through that process in realistic and practical terms. It acknowledges that the experience of coming out and living openly covers the full spectrum of human emotion – from fear to euphoria. Whether coming out to friends, family, coworkers or healthcare providers, a person’s approach and timing will be as unique as his or her own sense of identity.

The Human Rights Campaign lists the following benefits of coming out:

The Benefits of Coming Out:

  • Living an open and whole life.
  • Developing closer, more genuine relationships.
  • Building self-esteem from being known and loved for our whole selves.
  • Reducing the stress of hiding our identity.
  • Connecting with others who are LGBT.
  • Being part of a strong and vibrant community.
  • Helping to dispel myths and stereotypes about who LGBT people are and what our lives are like.
  • Becoming a role model for others.
  • Making it easier for younger LGBT people who will follow in our footsteps.

But, there are also risks of coming out:

  • Not everyone will be understanding or accepting.
  • Family, friends or co-workers may be shocked, confused or even hostile.
  • Some relationships may permanently change.
  • You may experience harassment or discrimination.
  • Your physical safety may be at risk.
  • Some young people, especially those under age 18, may be thrown out of their homes or lose financial support from their parents.

The HRC suggest making a coming out plan. First, get a sense of how accepting the important people in your life will be by the things they say or don’t say when LGBT-related issues come up. Second, be well-informed on LGBT issues so that you can respond to misinformation about LGBT issues. Third, practice what you want to say and be prepared. Fourth, have a support group to help you through the process. Fifth, pick a good time to come out. And Last, be patient and allow time for people to come to terms with your news.


Books for children in gay-parent families

I came across this list of books for children in families with gay  and LGBT parents and thought it might be useful as a resource: Gay-Themed Picture Books for Children. I especially liked the one titled A Family is a Family isBooks for children in gay families a Family that talks about children who tell a teacher what makes their family special and hearing about all different kinds of families – one child is raised by a grandmother, one has two dads, one has a lot of step-siblings, and another has a new baby. Another book called Home At Last talks about a child who didn’t have a home for a long time and is adopted by two dads. There is even a book that delves into the topic of a child conceived through sperm donation called Family Stew. And, another book goes through a family whose child was conceived through surrogacy, Milo’s Adventures: A Story About Love. Other topics include gender nonconformity, AIDS and disease, bullying, cross-dressing, tomboys, and homophobia. There are books in Spanish, French, and many other languages listed in this blog.

The curator of the list cites three purposes of the list – 1) for parents who would like to find books for their children about the experience of being a child in a gay family or having gay family members; 2) for librarians who would like to develop collections; and 3) for counselors and therapists who would like to have books like this in their practices.

For many children, having books like this will give them something to identify with and help them understand that they are not alone or strange or weird. They will also help parents find the words to open discussions with children about topics that might be hard.

My mother instilled in me a love of reading from a very young age. She always believed that a person could learn anything in the world if they know how to read. She loved libraries and book stores, and even buying books at garage sales. She was always reading something.  If my Mom were still here, I’m sure she would want to read these books to help understand what some of the children experience.

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.