The Texas Supreme Court issued its opinion today in In re Abbott, addressing the interim injunctions issued to prohibit DFPS from acting on Governor Abbott and Attorney General Paxton’s directives that gender affirming care constitutes child abuse.

Procedural result

Recall that the suit originates from the plaintiffs’ underlying causes of actions (1) a claim for a declaratory judgment that DFPS’s statement regarding its implementation of the Governor’s directive amounts to an invalid rule under the Administrative Procedures Act (APA), (2) a claim for a declaratory judgment that the Governor and the Commissioner engaged in ultra vires conduct, and (3) claims of various constitutional violations. The merits of those claims were not before the Court in this mandamus proceeding. Further, the merits of the underlying claims are not affected by the narrow ruling today, which only addresses the injunctive relief while the case pends.

The issue in the mandamus appellate proceeding before the court was only what authority the courts have to issue injunctive relief to the parties in the case and/or the state as a whole to allow DFPS to investigate and act upon claims of child abuse committed by parents seeking gender affirming care of transgender children. The result of the mandamus proceeding is a mess with all of the justices participating (Justice Young was not participating) unanimously voting in favor of part of the decision, but only a majority voting in favor of the last portion of the decision. Justice Deborah Lehrmann wrote a concurring opinion agreeing in the result, but commenting further on the global issues. Justices Blacklock, Boyd, and Devine — known to be the most right of the conservative court — dissenting in the last part of the court’s decision.

Summary by the Court

The Texas Supreme Court provides the following summary of the ruling:

On February 18, 2022, the Texas attorney general issued an opinion letter concluding that certain “‘sex change’ procedures and treatments . . . when performed on children, can legally constitute child abuse under several provisions of chapter 261 of the Texas Family Code.” The governor then sent a letter to the Texas Department of
Family and Protective Service (DFPS) stating that “a number of so-called ‘sex change’ procedures constitute child abuse under existing Texas law” and instructed “DFPS and all other state agencies” to “follow the law as explained in” the attorney general’s opinion. DFPS issued a media statement that it would follow the governor’s instructions.

Parents of a child diagnosed with gender dysphoria and a doctor who treats such children sued the governor, the DFPS commissioner, and DFPS, challenging the governor’s and DFPS’s statements. The district court granted plaintiffs a temporary injunction that restrained the defendants from: “(1) taking any actions against plaintiffs based on the governor’s and DFPS rule . . . as well as Attorney General Paxton’s opinion;” “(2) investigating reports in the state of Texas against any and all persons based solely on alleged child abuse . . . where the only grounds for the purported abuse or neglect are either the facilitation or provision of gender-affirming medical treatment or the fact that the minors are transgender, gender transitioning, or receiving or being prescribed gender-affirming medical treatment;” “(3) prosecuting or referring for prosecution such reports;” and “(4) imposing reporting requirements on persons in the state of Texas who are aware of others who facilitate” the above actions.

The state filed an interlocutory appeal, which automatically superseded the district court’s injunction. The court of appeals reinstated the injunction under its authority in Texas Rule of Appellate Procedure 29.3 to “make any temporary orders necessary to preserve the parties’ rights until disposition of the appeal.” The state petitioned the Supreme Court for mandamus relief from the injunction.

The Supreme Court granted partial relief. The Court first clarified that neither the governor nor the attorney general could bind DFPS’s investigatory authority. The Court then granted mandamus relief as to the parts of the court of appeals’ order that purported to bind nonparties, reasoning such an injunction was outside of the court of
appeals’ authority to protect parties’ rights under rule 29.3. The Court also granted mandamus relief as to the parts of the court of appeals’ order binding the governor, as the governor does not have authority to investigate, prosecute, or impose reporting requirements regarding child abuse allegations. Lastly, the Court denied the state relief as to the order’s impact on the plaintiffs.

Justice Lehrmann filed a concurring opinion. The concurrence agreed with the Court’s opinion and judgment but highlighted the narrow scope of the Court’s partial grant of mandamus relief, particularly its lack of effect on the merits of the underlying suit. The concurrence also viewed the scope of the court of appeals’ order as narrower than the state presented. The concurrence viewed the injunction as returning DFPS’s investigative policies to the status quo which the concurrence reasoned implicated whether the state indeed has an adequate remedy by appeal.

Justice Blacklock filed a partially dissenting opinion, in which Justice Boyd and Justice Devine joined. The partial dissent would have granted the state mandamus relief as to the part of the court of appeals’ order regarding the plaintiffs. The dissent reasoned that the plaintiffs did not establish that they were entitled to an injunction against DFPS beginning an investigation of potential child abuse. According to the dissent, the proper time for courts to review DFPS’s actions is after the investigation stage when DFPS tries to act based on the investigation.

But what does all of this mean?

Procedurally, the Court dismisses the global and broad injunctive relief that prohibited DFPS from conducting investigations of child abuse generally for gender affirming care. Instead, the Court restricted the power of the trial court to issue injunctive relief *only* as to the specific parties to the case at hand. This means that other families who are being investigated solely as a result of the Governor and AG’s opinions must affirmatively file suit in order to be entitled to injunctive relief.

Left after the opinion is (1) a court of appeals order that protects only the plaintiffs as against DFPS and its Commissioner’s actions, and not as against the Governor; (2) a nonbinding Attorney General Opinion; (3) a nonbinding statement by the Governor; and (4) a state agency, DFPS, with the same discretion to investigate reports of child abuse that it had before issuance of OAG Opinion No. KP-0401 and the Governor’s letter, says the opinion.

So the injunctions against the actions of DFPS as it relates to the parties to the pending suit remain.

Noteworthy, however, the opinion clearly states that that neither the AG nor the Governor have the ability to change the laws regarding child abuse and the Department cannot rely on the AG opinion or the Governor’s Directive as a basis for these investigations.

Footnote 3 of the opinion addresses the elephant in the room, so to speak: “We are not blind to the many informal  mechanisms by which a governor or an attorney general may validly seek to influence the behavior of state agencies as part of the normal give-and-take between departments of state government. Ultimately, however, one department or another has the final say, and a court must correctly identify the true decision-maker before assessing the decision.” In other words, DFPS needs to stand up for themselves and their independent right to do the job they are commanded to do under the code — investigate child abuse — without kowtowing to the interference of other elected officials peacocking around the state for votes in an election year.

Justice Lehrmann’s concurring opinion — gender affirming care approved by a medical doctor is not child abuse

Justice Lehrmann, a former family court trial judge from Tarrant County, filed a concurring opinion to “…write separately to highlight the narrow scope of what is before us in contrast to the broader underlying dispute, lest we lose the forest for the trees.” She seems to be the Justice with the most relevant perspective and experience with the issues as a whole. (As a side note, her opinion is the only opinion which uses proper reference to the issues.) She goes on to clarify:

The reinstated injunction prohibits DFPS from investigating reports “based solely on . . . facilitating or providing gender-affirming care . . . where the only grounds for the purported abuse” are “facilitation or provision of  gender affirming medical treatment.” (Emphases added). The order further makes clear that the injunction is intended to restrain enforcement of “the Governor’s directive and DFPS rule, both issued February 22, 2022.”

In other words, the order temporarily reinstates DFPS’s policies as they were prior to the February 22 directive, leaving DFPS free to screen and investigate reports based on its preexisting policies regarding medical abuse and neglect…. That is, it does not preclude DFPS from investigating reports that a child diagnosed with gender dysphoria is receiving treatment that is medically unnecessary or inappropriate. To the contrary, it requires DFPS, as has always been its responsibility, to investigate reports of child abuse or neglect allegedly committed by a person responsible for a child’s care, custody, or welfare. TEX. FAM. CODE § 261.301(a). And DFPS has a detailed process for screening reports and initiating and conducting those investigations. See TEX. ADMIN. CODE §§ 707.447–.517. These standards apply regardless of a child’s diagnosis with gender dysphoria. The order would simply bar DFPS from initiating investigations and making referrals based solely on the new grounds set out in the Governor’s directive.

Accordingly, DFPS itself recognizes that the court of appeals’ order—even if it were not deficient under Rule 29.3—does not bar it from investigating child abuse and neglect associated with inappropriate or medically unnecessary treatment for gender dysphoria; it simply must use preexisting criteria and procedures in determining whether a particular case justifies intervention.

Footnote 3 of Justice Lehrmann’s concurring opinion, importantly, she writes: “There is no plausible argument that DFPS is foreclosed from investigating these types of nonmedically approved procedures as possible child abuse, either before or after the injunction. This is in stark contrast to medically accepted treatments like the administration of puberty-suppression drugs prescribed by a treating physician. By essentially equating treatments that are medically accepted and those that are not, the OAG Opinion raises the specter of abuse every time a bare allegation is made that a minor is receiving treatment of any kind for gender dysphoria. In my view, a parent’s reliance on a professional medical doctor for medically accepted treatment simply would not amount to child abuse.”

Let’s restate that for those who are still unclear: Reliance on a professional medical doctor for medically accepted treatment simply would not amount to child abuse. Thank you, Justice Lehrmann for showing the courage to be the voice of reason here!

Now the case returns to the trial court for proceedings addressing the merits of the underlying case.

June 2021 UPDATE: The Dallas Court of Appeals has withdraw their original opinion in this case from December 2020 and replaced it with a new opinion. The new opinion eliminates the dicta (lawyer word for unnecessary opining) about the issue of retroactivity of same-sex marriage pre-Obergefell and sticks to the main question of whether error was preserved about the jury charge. That was my main criticism about the December 2020 opinion — it didn’t need to go there to reach the decision in the case. The Dallas Court of Appeals appears to have self-corrected on this issue to stick with the main point of the case and not wade into the controversial issues unnecessarily.

 

 

The Dallas Court of Appeals issued an opinion in Hinojosa v. Lafredo on Friday that potentially calls into question the retroactivity of same-sex marriages in Texas.

Hinojosa sued for dissolution of an alleged marriage. The trial court bifurcated the case and jury trial was held on the first portion of the case to determine whether there was an informal marriage.

The relationship began in 1999 when the two men began cohabiting together. At Christmas LaFredo proposed marriage in a card given to Hinojosa. Hinojosa agreed to be married. LaFredo later denied this was a marriage proposal because he knew that two men could not marry under the current state of the law at that time. The two held a “commitment ceremony” in october 2000 in Italy with their friends and family in attendance. During the ceremony, the men exchanged rings, lit a unity candly, and accepted each other as “life partners”. Hinojosa called the ceremony a wedding thereafter and LaFredo never objected to that characterization. After returning to New York following the ceremony, both men referred to each other as married in front of others and introduced each other as spouses. In 2005 the men moved to Texas and bought a house together. The real estate documents listed the men as “single” co-owners. Throughout the relationship, the men maintained separate bank accounts, filed separate returns as single individuals, and attempted to split their expenses evenly. The parties separated in 2014 and Hinojosa filed for divorce in late 2015.

Hinojosa plead for divorce based on a formal ceremonial marriage, or alternatively, based on an informal marriage. At the bifurcated trial on the existence of a marriage, the jury charge did not include a question about whether there was a formal, ceremonial marriage. Instead, the charge only asked if the men were “informally married” and as of what date.

The error presented at the court of appeals challenged the jury charge. First, Hinojosa argued that the jury should have been charged on whether there was a formal marriage. Second, Hinojosa challenged an instruction given to the jury that Texas did not legally recognize same-sex marriage prior to June 26, 2015 because it was an incorrect statement of the law which confused the jury.

As to the first issue, the court of appeals held that it was not error to refuse to charge on whether there was a ceremonial marriage because the requirements for ceremonial marriage were not met. In other words, the men did not get a marriage license executed by the county clerk and have the ceremony performed by a judge, clergy, or public official within 90-days of getting the licenses. The court of appeals went on to opine that the question of the effect of Obergefell’s decision determining the impediments to same-sex marriage unconstitutional leaves an open question as to the retroactive application to relationships that pre-dated that decision. Further, the court opines that, even assuming Obergefell applies retroactively which relieved the men from establishing that they obtained a valid marriage license, they still must prove that the other requirements of a ceremonial marriage were met.  The court of appeals held that Hinojosa’s counsel failed to properly request the charge he sought to be included and tender the exact wording he wanted included.

As to the second issue presented to the court of appeals, Hinojosa complained that the instruction about the legality of same-sex marriage misstated the law. However, the court of appeals found that Hinojosa failed to make that objection at trial which waived his error on appeal. Further, the court of appeals held that Hinojosa failed to show that the inclusion of the offending instruction caused the rendition of an improper judgment.

Michelle’s commentary: Ultimately, the court of appeals affirmed the judgment of the trial court based on trial counsel’s waiver of error. The dicta regarding the supposed openness of the retroactivity question seems unnecessary to the result. It confuses me in reading the opinion why it was germane to the discussion for the court of appeals to opine about retroactivity. Courts of appeals justices are known to hang on waiver error when possible to avoid controversial determinations. So, there should have been no reason to wade into the waters of retroactivity of Obergefell when they found waiver.

 

Today, the U.S. Supreme Court declined review of the Box v. Henderson case filed by the State of Indiana in June of 2020, which presented the Court with the issue of whether a state may adopt a biology-based birth certificate system that includes a rebuttable presumption that a birth mother’s husband-but not wife-is the child’s biological parent. Eight female same-sex couples who conceived children through sperm donation sought the right to be recognized on their children’s birth certificates in federal court after the Indiana Department of Vital Records refused to comply. In 2016, the federal district court did order the Indiana Department of Vital Records to begin placing the spouses of people who give birth on their children’s birth certificates regardless of the gender of the spouse; however, the State of Indiana appealed to the Seventh Circuit, which upheld the district court’s ruling.

SCOTUS to Indiana Attorney General Curtis Hill: Marriage Equality remains the law of the land.

When Indiana Attorney General Curtis Hill asked the Supreme Court to strip same-sex couples of their equal parenting rights, he did so at the request of the Court, which was considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gave SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wanted to begin eroding Obergefell, they had their chance. Many feared that the Court, with it’s 6-3 conservative majority, would undercut the guarantee of the rights and privileges afforded to same-sex couples nationwide after Obergefell. Thankfully, that did not happen. Cathy Sakimura, the Deputy Director & Family Law Director of the National Center For Lesbian Rights stated:  “We are relieved that the Court took the only reasonable action here and allowed the order requiring Indiana to treat families equally to stand,” meaning that the Seventh Circuit’s opinion that Indiana must list same-sex spouses on their children’s birth certificates in the same manner that it does different-sex parents stands. NCLR, along with Ropes & Gray LLP, represented the couples before the U.S. Supreme Court, along with Indiana counsel Karen Celestino-Horseman, Raymond Faust, Richard Mann, and William Groth.

Many may recall the Arkansas Supreme Court case which also dealt with same-sex spouses wanting to be included on their children’s birth certificates. “The Court has ruled on this issue twice before, first in Obergefell, which included a married lesbian couple from Tennessee who obtained a district court order requiring the state to list both women on their child’s birth certificate, and again in Pavan v. Smith, in which the Court summarily reversed a decision by the Arkansas Supreme Court permitting the state to exclude a birth mother’s female spouse from a child’s birth certificate,” said NCLR Legal Director Shannon Minter(he/him), concluding, “marriage equality remains the law of the land.”

I had the opportunity to attend the 2019 John Hemphill Dinner with members of our firm and other guests, where Justice Neil Gorsuch was the featured speaker. After the event concluded, the attendees had a brief opportunity to meet and take a picture with Justice Gorsuch. I posed for a picture alongside my mentor and our firm’s senior shareholder, Michelle May O’Neil, and another firm colleague, Jennifer Satagaj, and later, I excitedly posted the picture to my social media account.

There was almost an immediate backlash of indignation and fury, with multiple negative comments posted to my page by several of my colleagues and friends, who seemed to be outright questioning my commitment to the LGBTQ community. I was taken aback.  Prior to posing for the picture, I had witnessed Judge Audrey Moorehead, a prominent and esteemed member of the Dallas judiciary who is also a staunch democratic ally, not only shake Justice Gorsuch’s hand and pose for several pictures, but also engage him in a somewhat lengthy dialogue where the two laughed and carried on with the ease of two long-lost schoolmates. Now, part of this phenomenon was simply the magic that is Judge Moorehead–but because I trust her  implicitly as a mentor and friend–in that moment, she was an example to me of perfect diplomacy. I set aside all hesitation and confidently followed her lead and posed for a picture without further hesitation.

Fast forward to June 15, 2020.

In its landmark opinion in Bostock v. Clayton County , the United States Supreme Court made a giant leap forward by elevating the rights of LGBTQ people to protected status under Title VII of the Civil Rights Act of 1964. The grouping of cases before the Court sought the Court’s determination as to whether a person can be fired simply based on their sexual orientation, gender identity, or gender expression. The 6-3 decision, authored by Justice Neil Gorsuch, resoundingly responds with a “no.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex, and the Court found that the word “sex” includes sexual orientation, gender identification, and gender expression. This is the first major case on transgender rights. Prior to this decision, many states (including Texas) could legally discriminate against a person for being gay, bisexual, or transgender. Now, workplace protections extend to millions of people across the nation.

Gorsuch wrote:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex…It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Ideally, this opinion will impart on judges in Texas family law cases the importance of protecting individual rights regarding sexual orientation, gender identity, and gender expression, particularly as those rights relate to parenting decisions. No court should deny a parent a relationship with his or her child based on sex as the term is defined in Bostock. While the Bostock opinion brings forward the rights previously bestowed on LGBTQ parents from Obergefell and Pavan, it will be interesting to observe how Texas courts apply those rights with regard to non-traditional families going forward.

So, what is the lesson?

Well, the Bostock opinion, authored by Justice Neil Gorsuch, has been widely embraced by every major LGBTQ rights advocacy group:

“Finally. Today, the law, justice and fairness are on our side. Our nation’s highest court confirmed what Lambda Legal has argued for years, that discrimination against LGBTQ workers is illegal.”

“This victory is a watershed moment for the LGBTQ community in Texas and across America, which has been working for decades to secure basic protections from discrimination. The Court’s decision will directly impact LGBTQ Texans and millions of people across the country and allow them to live their lives and take care of their families with respect and dignity,” said Ricardo Martinez, CEO of Equality Texas.”

“This is a landmark victory for LGBTQ equality,” said HRC President Alphonso David. “No one should be denied a job or fired simply because of who they are or whom they love.”

“For the first time, this historic decision ensures that LGBTQ people have nationwide employment protection and represents a monumental step that will help to create a safer working environment for everyone,” said NCLR Executive Director Imani Rupert-Gordon.”

On the day that I posed for a picture with Justice Gorsuch, he was largely viewed as an adversary to LGBTQ rights, but on June 15, 2020, he authored one of the most important pro-LGBTQ rights opinions ever to come out of the US Supreme Court.

Jennifer Satagaj, Karri Bertrand, Justice Gorsuch, and Michelle O’Neil

Always take the picture.

The late John F. Kennedy once said: “If we cannot end now our differences, at least we can help make the world safe for diversity.”

Justice Gorsuch and I likely do not see eye to eye on many things, but the majority opinion he authored in Bostock will go far in making the world safer for diversity.

Last month, the Texarkana Court of Appeals quietly released an opinion that should have some big shockwaves through LGBT family law in Texas. In the case of In re T.E.R., the Texarakana Court affirmed the decision of the trial court to grant a second parent adoption over the objection of the adoptive parent and after the parties’ divorce. Interest of T.E.R., No. 06-19-00073-CV, 2020 WL 1808869 (Tex. App. Apr. 9, 2020).

The parties were married in 2009 and decided to adopt a child. M1 adopted the child in 2014. In 2017 M2 sought divorce. The trial court granted divorce, found M1 (only) to be the parent of the child and appointed the parties JMC with M1 primary.

In  2018, M2 petitioned for adoption of the child. M1 challenged M2’s standing, which the trial court denied. Then at final bench trial, the judge granted the adoption by M2 over M1’s objection.

M1 sought appeal.

The trial court found that Mandy had standing pursuant to Section 102.005(5) of the Texas Family Code, which provides:

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by … (5) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

The court of appeals pointed out that this standard is a mixed question of law and fact, requiring deference to the trial court’s factual determination but de novo review of the trial court’s legal conclusion.

The opinion reviews the facts involving each mother’s involvement with the child, concluding that M2 had substantial involvement with the child. Interestingly, they looked at facts well behind the prior divorce decree between the parties.

Then, the Court turned to examine whether the trial court’s finding that the adoption was in the best interest of the child was sufficient. In determining a question of adoption, best interest of the child is the primary consideration. The Court found that the evidence was sufficient to support the trial court’s determination that the best interest of the child supported granting the adoption.

A couple of points of commentary:

  • It does not appear that M1 made any argument that there was or should be a fit parent presumption applied to the standard for adoption.
  • M1 could have asked for a jury trial on the adoption question and did not.
  • The court of appeals talks at length about the standard of review in the standing issue, applying a hybrid abuse of discretion analysis to the factual decisions and a de novo analysis to the legal conclusions. Then, the opinion applies an abuse of discretion analysis to the ultimate merits decision (abuse of discretion).
  • The detail pertaining to the involvement of the parties must have required a lot of discovery and subpoenas.
  • M2 did not argue that she is a presumed parent under 160.106 and 160.204 at the time of the divorce. (See Treto and Pavan decisions also.)

A new opinion out of the Court of Appeals in the Thirteenth District of Texas applies the paternity presumption under the Texas Uniform Parentage Act to a female non-bio parent in a same sex marriage, where the child was born during the parties’ marriage.

Jennifer Treto appealed the trial court’s ruling, arguing that she is not a parent because she is not biologically related to the child and that the Family Code does not recognize her as a parent. The Court of Appeals affirmed the trial court’s ruling.

Under the Family Code, and were gender not at issue, Jennifer is a presumed “father” because she was married to Sandra at the time Sandra became pregnant and the child was born during their marriage. Both parties confirmed that they had embraced that child as their own. Sandra testified that Jennifer was an intended parent and Jennifer testified that she participated in the child’s insemination, in the events of the pregnancy, the birth, and in taking care of the child once the child was born. On appeal, Jennifer argued that the Texas statutes allow her to walk away from her marriage without any legal relationship with the child and without supporting the child of the marriage financially. This argument defies the long-standing public policy espoused by the State of Texas to protect the interests of its children including ordering child support.

In the Treto opinion, the court applies the presumption of paternity equally to maternity, which is stated in the Family Code but previously construed otherwise in the A.E. case out of Beaumont (where the court narrowly construed the definitions of father and a mother and the sections concerning parentage and standing).

The parental presumption should be applied neutrally as to gender under both the Pavan and Obergefell opinions. In 2015, Obergefell decided that prohibition of same sex marriage violated the federal constitution’s guarantee of equal protection. In 2017, Pavan unequivocally extended Obergefell’s reach to ancillary benefits of marriage including such important, but mundane things as completing the names of the parents on the birth certificate of a child. Accordingly, the court in Treto interpreted the statute as written by the legislature, giving effect to all of the portions of the statute, and avoiding an interpretation that violates the equal protection guarantees of the Texas and federal constitutions, concluding:

“The trial court gave effect to the Texas Family Code presumption that a child born of the marriage is the child of the mother’s spouse … The trial court treated this married couple like any other married couple who separated after having a child; it divided the community property, entered an order regarding the rights and responsibilities regarding the child including support, and granted the divorce requested by both.”

Also, worth noting – there is another case (Jaetzold) pending before the Beaumont Court of Appeals (Ninth District) involving a non-bio parent’s attempt to sue for access and possession of a child born during the parties’ marriage. The trial court in that case found that the non-bio parent did not have standing to bring suit. Stay tuned!

Hat tip to Shelly Skeen with the Lambda Legal Dallas team for alerting us to this case!

As I reflect on my first year of practicing family law (including divorce and child custody in Dallas, Texas), I realize that there were many moments where I felt the weight of the responsibility of my new title very heavily on my shoulders. Because I was a paralegal for so many years before law school, part of my brain believed that my transition to lawyer would be less jolting. In some ways, I had a few advantages, but only when it came to the procedural tasks that many lawyers pick up rather quickly anyway.

The real difference for me—and the thing that has kept me up many nights—is that now, I am in the driver’s seat. I am the one making the decisions, guiding the strategy, and calling the shots. It’s pretty sobering out here as I’m advocating for my clients’ children, protecting their retirement accounts, and often, helping to restore their mental health and emotional well being. I take my responsibility very seriously. Because I also handle numerous cases with clients who identify as LGBTQ+, I am acutely aware of the statutory challenges they may face.  I am also cognizant that the climate in certain Texas counties toward LGBTQ+ parties may be less-than-favorable. To date, I’ve successfully represented clients who identify as transgender, gay, lesbian, bisexual, nonbinary, and polyamorous, in several less-than LGBTQ+ friendly Texas counties.

Below is my Top 5 List of helpful tips for those who identify as LGBTQ+ who may be contemplating custody litigation. Your rights may teeter precariously on the edge of a legislative loophole, so please get the advice of an experienced LGBTQ+ family law attorney as soon as an issue arises.

Top 5 Tips for LGBTQ+ Custody Litigation

  1. Document everything!

This point cannot be emphasized enough. Below is a list of the types of things you should document, as applicable. Keep a calendar or a journal—whatever is handy or convenient—at all times.

  • Your child’s daily schedule and/or routine;
  • Dates and times when your child is in your possession (be detailed, specific, and include all dates and times—yes, I said ALL);
  • Places and/or documents where you are listed or named as a parent, conservator, or emergency contact for your child (birth announcements, birthday party invitations, church records, school records, medical records, etc.);
  • Text messages and/or e-mails between you and the other conservator discussing the child or topics related to the child;
  • Text messages and/or e-mails between you and the child’s other caretakers, such as teachers, doctors, or other family members;
  • A detailed list of the parenting roles that you fulfill for the child (room parent at school, carpool to and from school or to extracurricular activities, doctor appointments, bath or bedtime routine, etc.)
  • A list of your child’s favorite things such as colors, books, foods, activities, songs, etc.;
  • Several recent photos of you and your child as well as photos showing your historical interactions with your child (birth photos, birthday parties, holidays, etc.); and
  • Copies of your child’s legal documents (birth certificate, Social Security card, passport).

  1. Prioritize your self-care.

Take care of your mental health. Find a good counselor and see your counselor regularly. Yes, even if you’re not depressed, and yes, even if you don’t think you need one. Your attorney cannot and should not fulfill this role, and your counselor will provide you with a healthy outlet for your fears, frustrations, and anxiety as you progress through custody litigation. This person could also be a potential witness to your mental fitness if needed.

Take care of your physical health. Go to the doctor and get a checkup, take your vitamins, do some yoga or other exercises both to stay healthy and for mental clarity.  If you’re not taking care of yourself, you are not in a position to take care of others. Period. Put yourself high on your list of priorities and proceed accordingly

  1. Get involved.

Don’t be the parent who doesn’t know your child’s teachers’ names, their dentist, or the name of your child’s best friend. Regularly attend your child’s choir or band concerts, cheer at your child’s after school sporting events, have lunch with your child at school, regularly participate in parent/teacher conferences and open houses, and attend your child’s doctor’s visits. Your name on those attendance sheets and doctor records will show your level of involvement as an active parent who is perfectly positioned to take on the full responsibility of caring for your child. If you’re unable or unwilling to immediately take on a more active role in your child’s life, please seriously consider your motivations for pursuing custody litigation. If you are wanting more possession time with your child, get more involved now in all of the ways that you can. Make sure that what you want actually fits with what you are able to take on. If you work long hours, have a talk with your employer about tweaking your schedule sooner rather than later.

  1. Get your ducks in a row.

This tip is sort of a catchall for the items listed above, but do take some time to sit down and carefully scrutinize every aspect of your life. Can you comfortably pay all of your bills? Are you satisfied with your current job? Are you in a stable relationship? During litigation, every aspect of your life will be dissected, evaluated, and investigated. Now is the time to kick any bad habits and generally just to clean up your act.  Please be careful with your social media posts, and never, ever post any derogatory remarks about your child’s other parent. Also, keep your weekend binge drinking or other less-than-savory activities out of the public eye, and always practice discretion in accepting unfamiliar friend requests. Last but not least, plan financially for the long haul. Your initial retainer to hire your lawyer may get you to the finish line, but it may not, and depending on how contentious your case becomes, starting a fight you cannot finish could yield devastating results. Your lawyer is your best weapon, so keeping them in the game is imperative.

  1. Know the law.

Go meet with an attorney. Yes, now! If you don’t know the law, you won’t know how to proceed.  In many circumstances, there are deadlines that once missed, may preclude you from even filing a lawsuit. Talk to a family law practitioner who has handled cases similar to yours who can guide you through the process and prepare you for all of the potential outcomes. Write down your questions and go to the consultation prepared to get answers to all of them. If you identify as LGBTQ+ and you are a non-biological or non-adoptive parent, please act sooner rather than later.

Oklahoma Supreme Court finds non-biological parent to have the *same rights* to a child born during a same-sex relationship as the biological parent. “A nonbiological parent stands IN PARITY with a biological parent…. Lori did not act in the place of a parent; she is a parent.”

The Court put in place the following standard for these cases:

“We conclude that, to establish standing, a non-biological same-sex co-parent who asserts a claim for parentage must demonstrate–by a preponderance of the evidence–that he or she has
* engaged in family planning with the intent to parent jointly

* acted in a parental role for a length of time sufficient to have established a meaningful emotional relationship with the child, and

* resided with the child for a significant period while holding out the child as his or her own child.

“As always, a court shall assess these factors with the best interests of the child as its foremost aim. When a continuing relationship with the non-biological parent is in those best interests, a court must honor its validity and safeguard the perpetuation of that bond. In such proceedings, parties may continue to invoke equitable doctrines and defenses, e.g., equitable estoppel.

Now, looking to Texas…. when?

Read more here: https://law.justia.com/…/okl…/supreme-court/2019/115362.html

Newly-elected Judge Sonya L. Heath of the 310th District Court of Harris County dismissed the Pidgeon case last week after ruling on competing final motions for summary judgment by either party.

In 2013, the Houston Mayor directed that the City provide employee benefits to spouses in same-sex marriages, the same as spouses in heterosexual marriages. Two conservative activists in Houston filed suit against the Mayor and City, arguing that the expenditures violated the state and city defense of marriage act because the City was “expending significant public funds on an illegal activity”. The Plaintiffs alleged that the state and city’s defense of marriage acts remained valid, even in light of the recent Windsor opinion decrying the similar federal law because Windsor didn’t require any state to recognize same-sex marriages from other states.

Interestingly, this case was filed in the family district court where a Republican judge remained on the bench. It was not a family law matter and should have been filed in the civil courts of Harris County. Democrats already predominated the civil benches in Harris County at the time of the filing. I’m not sure how it came to be filed in a family court with a presumably friendly judge.

The trial judge, then Republican Lisa Millard, denied the Mayor/City’s plea to the jurisdiction challenging the Plaintiffs’ standing and granted the Plaintiffs’ temporary injunction prohibiting the mayor from providing the benefits. The Mayor/City sought interlocutory appeal.

While the appeal was pending, the US Supreme Court came out with the Obergefell v. Hodges decision which invalidated the state defense of marriage acts and gave same-sex marriage equal protection status under the law. Both sides argued about the application of Obergefell to the Pidgeon case. The Plaintiffs believed that Obergefell only required the state to recognize same-sex marriages, but not to require the state to pay taxpayer-funded benefits to them.

The court of appeals reversed the injunction and remanded the case back to the trial court, holding that Obergefell controlled and validated the marriages, preventing the Plaintiffs’ recovery.

The Texas Supreme Court undertook review of the case in 2017. The Plaintiffs took issue with the court of appeals ruling to “reverse” the injunction as having preclusive effect to a future application, instead arguing that the court of appeals should have “vacated” the injunction in light of the change in the law and remanded to the trial court for further consideration. The Texas Supreme Court agreed with that argument and held that the injunctions should be “vacated” in light of the change in the law due to Obergefell and sent back to the trial court for further consideration under the new law. The Texas Supreme Court went further and opined that the Obergefell decision did not hold the Texas defense of marriage act unconstitutional and did not hold that states must provide the same publicly funded benefits to all married persons . The Court acknowledged that it was not concluding that the Texas defense of marriage act was constitutional, but just that those issues are in question in light of the Obergefell decision and would not get reached in the Court’s opinion. Because the parties were entitled to an opportunity to fully and fairly develop their positions in light of the Obergefell decision, the right thing to do was to send the case back to the trial court to argue the meaning and ramifications of Obergefell.

Note that many refer to the question existing in the Pidgeon case as the question of the application of the “constellation of benefits” the state or federal government affords to married couples in light of same-sex marriage being recognized — whether equal protection also requires the same constellation of benefits to be afforded to those marriages.

Judge Sonya Heath, 310th Judicial District Court, Harris County, Texas

Upon remand, the parties fully briefed their claims and submitted them to the newly elected Democrat Judge Heath via summary judgment motions. When both sides to a suit submit competing requests for final summary judgments, the case can be decided completely within that procedure and without a trial on the merits. This is because both parties claim that the legal questions control the resolution of the case and that no factual issues remain.

Judge Heath granted the Mayor’s plea to the jurisdiction and motion for summary judgment, effectively denying the Plaintiffs’ competing motions, and ended the case.

To read Judge Heath’s Order Dismissing the suit: Pidgeon Order Dismissing

The Plaintiffs promise to appeal.

To be continued….

 

To read the Texas Supreme Court’s decision in Pidgeon, click here.

The American Bar Association’s Standing committee on Ethics released a formal opinion last week on guidance for judges performing same-sex marriage: In wake of landmark decision, ABA issues guidance for judges performing same-sex marriages. Their guidance interprets the Model Code of Judicial Conduct.

The Formal Opinion 485 incorporates procedures and policies developed for judges in Ohio, Arizona, and Nebraska. The 2015 Obergefell v. Hodges decision found the 14th Amendment of the U.S. Constitution prohibits states from refusing to license marriages between same-sex individuals and mandates that states recognize marriages between two same-sex people when lawfully performed in other states.

There are judges whose performance of same-sex marriages is mandatory and others who can choose whether to perform such marriages. The opinion of the committee interpreting the Model Code of Judicial Conduct is that ethics are violated when a judge performs marriages of opposite-sex couples yet refuses to perform marriages of same-sex couples. A judge may decline to perform all marriages for members of the public, yet still do weddings for family and friend, without violating the code of conduct. But the judge has to be consistent and not discriminate in performing weddings for members of the public.

Judges must maintain their impartiality and be free from bias and prejudice. It is not enough for a judge to actually be impartial, the public must perceive the judge to be impartial also. Refusing to perform weddings based on the sexual orientation of a couple where state law authorizes such shows prejudice or partiality.

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially, and free from bias and prejudice. Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial. If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper under Rules 1.1, 2.2, 2.3(A), and 2.3(B) Model Code….”

“Model Rule 1.1 obligates judges to comply with the law. Obergefell makes clear that the U.S. Constitution prohibits state officials from engaging in discrimination and bias toward gays and lesbians in decisions related to same-sex marriage; in short, the decision establishes law with which judges must comply. Model Rule 2.2 requires judges to “uphold and apply [this] law,” and further directs that judges “perform all duties of judicial office fairly and impartially.” As noted earlier, the term “impartiality” as used in this context means “the absence of bias or prejudice in favor of, or against, particular parties or classes of parties.” Furthermore, Model Rule 2.3(A) specifically requires judges to perform their duties free from bias and prejudice. Model Rule 2.3(B) prohibits a judge who is performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status. Indeed, we are aware of no state judicial ethics opinion concluding that similar judicial code provisions permit judges who perform marriage ceremonies for opposite sex couples to refuse to perform marriage ceremonies for same-sex couples….”

“A judge may choose to perform no marriages, or to perform marriages exclusively for family and friends. If judges opt to perform marriages only for friends and relatives, however, they cannot refuse to perform same-sex marriages for friends and relatives. Again, to refuse to perform same-sex marriages for friends and relatives while performing marriages of opposite-sex friends and relatives would violate Model Rules 2.2, 2.3(A), and 2.3(B). The fact that the judge’s conduct affects a smaller group of people—that is, friends and family versus the public at large— does not change the judge’s ethical obligations….”

The opinion concludes:

“A judge for whom performing marriages is either a mandatory part of his or her official duties or an optional exercise of judicial authority violates the Model Code of Judicial Conduct by refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples. In a jurisdiction where a judge is not obligated to perform marriages, the judge may decline to perform all marriages for members of the public. A judge who chooses not to perform any marriages for the public may still perform marriages for family and friends, so long as the judge does not discriminate between same-sex and opposite-sex couples when performing marriages for family and friends.”

The American Bar Association is one of the largest voluntary professional membership organizations in the world, with more than 400,000 members.

Read Formal Opinion 485 here: https://www.americanbar.org/content/dam/aba/images/news/2019/02/formal_op_485.pdf

For more information on Obergefell v. Hodges see the Oyez site here: https://www.oyez.org/cases/2014/14-556 They have links to the oral arguments, opinion announcements, majority and dissenting opinions.