Update from Oklahoma on non-bio parent custody

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

Back story: Pidgeon case on spousal benefits for same-sex couples dismissed

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.

ABA Opinion on Judicial Ethics in Performing Same-Sex Marriages

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.




Will you be my LGBT Valentine?

Love is for everybody. It’s a nice thought. But sort through the greeting cards at literally any store and the chances of finding something queer-themed, or even remotely non-heterosexual, is going to be low, low, low.

It doesn’t feel nice to be left out. So, here’s a website with download-and-print Valentine’s Day cards, classic e-Card style. And you can them give out to your loved ones!

Check them out: https://www.google.com/amp/s/www.youthkiawaaz.com/2019/02/lgbt-valentines-day-cards/amp/


Don’t try this at home! Parental donor agreements

The topic of Sperm Donor Agreements has recently risen in discussion between same-sex couples wanting start their families using alternative reproductive methods and how the law can impact their ability to parent. Some questions have been:

  • When is a sperm donor legal?
  • Is a sperm donor a parent?
  • Can a sperm donor get rights to my child?
  • Should I memorialize in writing an agreement between my sperm donor and I?
  • What does the law say regarding sperm donors?

A Sperm Donor Agreement is a contract between the sperm donor and the intended parents. A Sperm Donor Agreement is a protective measure used to clearly identify and establish legal parentage.  For instance, although a sperm donor would technically be the biological father of the conceived child, a sperm donor agreement would establish that the donor is not the child’s legal parent and that he intends to sever all rights and responsibilities of parenthood including visitation, access, decision-making, and child support.

A recent Texas illustrates the legal ramifications of not properly securing a donor agreement between a lesbian couple and a known sperm donor. In the case of In Re P.S., a woman asked her friend to be a sperm donor so that she could have a child. Both the woman and her friend orally agreed that he would be the donor but not the father of the child if a child was conceived. The friend willingly provided his sperm and a pregnancy resulted. The child was born in August 2014. Upon the birth of the child, both the birth mother and biological father signed an Acknowledgment of Paternity form so that the biological fathers name would appear on the child’s birth certificate. The birth mother attempted to rescind this Acknowledgment of Paternity soon after.

Later, the birth mother married a woman and sought to have her spouse adopt the child. She claimed that the man was only a sperm donor and had no parental rights to contest the second parent adoption. Based on the Acknowledgment of Paternity document, the court disagreed and found the man to be the legal father of the child and denied the request for the adoption by the birth mother’s spouse. The court further granted the father visitation rights with the child and set his child support obligations.

The court rested its decision on two statutory provisions found in the Texas Family Code. First, the court considered Section 160.702 which states that a “donor” is not a parent of a child conceived by means of assisted reproduction. Furthermore, the court examined the definition of a “donor” in section 160.102(6) which defines a “donor” as an individual who provides sperm to a licensed physician to be used for assisted reproduction.

The insemination was done informally at the home of the birth mother. The father did not provide his sperm to a licensed physician but rather directly to birth mother. Because of these two factors, the father was not considered a “donor” under state law.

If the parties had the artificial insemination done through a physician’s office, the father would have been a donor under the law and would not have been entitled to parental rights.

The lesson to learn here is that you can’t handle things informally between you and a donor if you do not want the donor to be a legal parent. To qualify as a donor under the law, the donation much happen through a licensed physician. A variety of issues can arise when the sperm donor is “known” to the prospective couple and matters are handled informally. A donor can easily assert themselves in parenting responsibilities when that role is not clearly defined by agreement and law.

You can read the full case here: http://caselaw.findlaw.com/tx-court-of-appeals/1752229.html


Parameters of an LGBT custody case

LGBT relationships are still a relatively new construct in a legal system that has traditionally been focused almost exclusively on two-parent, opposite gendered relationships. Some courts lag behind in addressing custody issues with same-sex partners, mostly due to inexperience and inconsistency in the laws.

Because same-sex parents cannot biologically birth children together, the legal definition of who qualifies as a parent is more complex in LGBT custody cases. One partner may be the legal parent, either from biological birth or adoption. The other parent may be an emotional parent but lack the legal formalities of technical parenthood. Unfortunately, these situations are relatively simple in the context of legal custody orders – the legal parent will retain custody of the child. The secondary, emotional-but-not-legal parent probably will not be granted any legal rights to the child and will find it extremely difficult to receive any court-ordered access to the child beyond the discretion of the legal parent. The non-legal parent cannot be ordered to pay child support either.

Same-sex partners can be considered both legal parents in one of 3 scenarios:

  • Both parents adopt the child.
  • One parent is biologically the child of one parent and the other parent adopts the child.
  • Child born to a legally recognized marriage where the law recognizes the non-biological parent as a presumptive legal parent.

While some states may recognize the third option as a route to legal parenthood, Texas is not one of them at this time.  There has simply been little legal precedent to come before the Texas courts on this issue, so to press the rights of a non-biological spouse to legal parentage, a case will eventually have to push the issue to the expense of a trial and appeal.

Where two legal parents in a same sex relationship seek custody of a child, the case resembles that of a more traditional custody case, with the same issues and factors being applied.  The best interest of the child will be the overarching consideration with issues like personal relationships, employment, emotional health and stability, ability to support both parents’ relationship with the child, and the child’s preference being considered.

For LGBT parents seeking to establish court orders regarding a child, the best option in almost every situation is to reach an agreement. Compromise may not be ideal but if the agreement falls within the range of possible outcomes in the court then it is almost certainly better than protracted and expensive litigation.

If you are faced with contested litigation, do your research and understand the nuances of Texas laws. Ultimately, acknowledge whether you are willing to be the “test case” for pushing the envelope of LGBT custody rights if the situation requires it. Last, Find a legal team that has experience in the LGBT custody arena but also is expert in traditional custody cases.


After the Breakup: Same Sex Couples with Children

For most couples with children, a breakup in their relationship does not equate to losing their children. However, when it comes to same sex couples, particularly those who never married, there are legal barriers that prevent them from asserting their rights as parents to their children.

In a recent case out of the Fourth Court of Appeals in San Antonio, a same sex couple conceived a child through artificial insemination. A year later, the parties separated, and the biological mother (Bio Mom) of the child moved to Texas, subsequently denying her former partner (Non-Bio Mom) any access to their child.  Non-Bio Mom filed a lawsuit seeking to establish legal standing to assert her parentage through two separate channels: first, she filed for divorce based on common law marriage, and second, she sought joint managing conservatorship through the adjudication of parentage. Parentage is adjudicated when a court formally orders the existence of a parent-child relationship.

Non-Bio Mom’s case was dismissed because she lacked standing, which is a legal hurdle overcome only by satisfying specific statutory requirements—none of which were met by Non-Bio Mom’s particular set of facts. The trial court denied the existence of a common law marriage between the parties and dismissed Non-Bio Mom’s statutory claims to standing as both an intended parent and a party with actual care, possession, and control of the child for at least six months.

Non-Bio Mom’s claim as the intended parent was dismissed because the statute only applies to men claiming to be fathers.Her claim as a party with actual care, possession, and control for at least six months was dismissed because the applicable period of time had ended more than 90 days before Non-Bio Mom filed her lawsuit, and the Court of Appeals further stated that she was not entitled to “equitable tolling” of her claim (essentially an extension of the statute of limitations which would preserve Non-Bio Mom’s claim) based on Bio Mom’s representations that the parties would reach an agreement.

Had Non-Bio Mom’s facts been tweaked slightly, she may have had stronger footing to defeat Bio-Mom’s motion to dismiss her lawsuit. For instance, another provision of the Texas Family Code provides that a man is presumed to be the parent of his child he lives with the child for two years, and he represents to others that he is the father of that child. However—note the pronoun usage—the kicker here is that the “Presumption of Paternity” appears to preclude a parental presumption for mothers. While the Uniform Parentage Act (UPA) is intended to be gender neutral, Texas courts have not consistently acknowledged this concept, nor has the Texas legislature adopted gender-neutral verbiage. See Does Heather Really Have Two Mommies? 

The bottom line is that any unmarried individuals in same-sex relationships with children who are contemplating a breakup should seek legal counsel prior so they can fully explore and understand all of the potential outcomes and complications. Married individuals in same-sex relationships may also face post-breakup hurdles depending on the date of their marriage and whether they are listed as a parent on their child’s birth certificate. It is imperative that individuals seek legal counsel from attorneys who handle these types of cases regularly and understand all aspects of the law as it applies to each individual case—both from the trial court level and from the appellate level.


Unique challenges of same sex custody cases in Texas

The right for same-sex couples to marry, and also divorce, has been in place in the U.S. for several years now. Same-sex relationships have normalized somewhat from being a unique anomaly to a run-of-the-mill occurrence. Even in some of the more conservative counties and courts that we practice in at our firm, gay marriage is now just  marriage and gay divorce is now just divorce. Adoptions by same-sex parents are even a normal happening and not something unusual or remarkable.

Even so, the rights to custody of children may not work exactly the same for a same-sex couple as other couples. In many same-sex relationships, one spouse is the blood relation to the child while the other spouse acts as a parent in the relationship, with virtually no difference being seen by the child. But, the non-biological parent may not have any legal rights to the child in the event the relationship ends, in spite of the emotional ties.

The safest way to solidify the legal relationship between a nonbiological parent and a child of the marriage is to go through formal step-parent adoption proceedings. It is easiest to do this when the relationship is good and everyone is happy. This is also the easiest time to avoid doing these necessary steps because things look good and it is largely unnecessary. An adopted parent is legally the same as a biological parent in determining the continuing relationship between parents and child after the end of the marriage relationship.

Short of adoption, the remedies for continuing a relationship with a nonbiological child after the end of the marriage relationship are bleak. Agreement between the parents to continue access is the most obvious remedy. But when a couple breaks up their relationship, sometimes they are unwilling to see the parenting role separated from the relationship to allow such continued access. In that event, the nonbiological parent is faced with seeking to continue a relationship in the court system. However, the law heavily favors legal parents (biological or adoptive) and their ability to make decisions for their children. In fact, the standard to impose court-ordered access is so high that the law says the legal parent has the constitutional right to make parenting decisions about who can be around the child without interference from a judge or court order. The singular exception is when the legal parent’s environment would cause significant physical or emotional harm to the child. Only then can the courts intervene.

While there is a window of opportunity written in the law that in some ways presumes parentage to both spouses for a child born during the marriage, no court in Texas has applied this law to a same-sex relationship. Even in hetero relationships, this rule is rebuttable when DNA rejects the parents biological connection. It would seem this possible remedy may not actually provide any security for a nonbiological parent in a same sex relationship even once litigated in the courts.

The message, loud and clear, to same sex couples who adopt or birth children during their relationship is that both parents must be made legal parents through adoption to provide the most security for the child in the event the relationship breaks up.

Can a gay man get custody of his child?

Can a gay man get custody when exiting a heterosexual relationship? I read with interest this article Gay Parent’s Claim for Custody. The article poses the challenges facing a gay man in getting custody of a child when exiting a heterosexual relationship. Some courts do not view gay men as equal to mothers and even hetero-fathers in custody cases. Prevailing prejudices and discrimination remains with some judges.

The best interest of the child remains the prevailing standard that any judge must apply in a case regarding custody of a child. No parent should expose their children to unstable new romantic relationships or unseemly behavior. Focusing on the stability of the parent to provide a good environment for the child can overcome the prejudices that exist. For example, a partnership between two stable men in an enduring relationship may be more nurturing and reliable for the child than a woman with many relationships and no particular connection. Such an unstable relationship by the mother would demonstrate a negative aspect of love and romance to the child.

The parental bond and involvement in the child’s life will also provide a good area of evidence to help boost a gay father’s request for custody. A gay father who is involved at school and with extracurricular activities will have advantages over an uninvolved mother. Helping with homework, knowing the child’s teachers and friends, and attending to medical issues are all important factors in a custody case, regardless of sexual orientation of the parent.

The bottom line, even in conservative courts and with conservative judges, a child-centered focus of the matters related to custody of the child can overcome the prejudices that may still exist. As with any parent, regardless of orientation, the involvement in the child’s life and emphasis on the child’s wellbeing will outweigh other factors most of the time.

Equal Parent Benefits for All Couples

Suzan and Kimberly McLaughlin, a married lesbian couple, conceived a child using artificial insemination with an anonymous donor in 2011.  When the parties later separated in 2013, Kimberly began restricting Suzan’s access to the child.  Suzan filed a lawsuit seeking to be recognized as a parent that same year.  In April 2016, the trial court ruled that Suzan is a legal parent of the child under Arizona law.  Kimberly appealed.  In October 2016, the Arizona Court of Appeals affirmed the trial court’s ruling that Suzan is a legal parent of the child. Kimberly then appealed the case to the Arizona Supreme Court, who affirmed the Court of Appeals on September 19, 2017, stating that that: “[i]t would be inconsistent with Obergefell to conclude that same-sex couples can legally marry but states can then deny them the same benefits of marriage afforded opposite-sex couples.” Kimberly then filed a petition for writ of certiorari to the U.S. Supreme Court, which was denied on February 26, 2018.

What is the effect of the U.S. Supreme Court denying Kimberly’s petition? Well, in Arizona, the denial means that the Arizona Supreme Court’s decision stands. The denial of a petition for certiorari does not mean that the Supreme Court agrees with the decision of the Court of Appeals, only that the case will not be reviewed. This means that while the denial is significant for the parties to the case, the impact the denial may have on other cases is unclear. Basically, the denial of a petition for writ of certiorari means that the appeals court decision agrees with the current law. In this case, the Arizona Supreme Court ruled consistent with its interpretation of Obergefell by extending the right to marry to include the subsequent benefits of marriage, including parentage. Since the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, many cases have recognized that married same-sex parents must be treated equally as married opposite-sex parents.  In June 2017, the U.S. Supreme Court held in Pavan v. Smith that Obergefell requires states to treat all married couples equally.  The Arizona Supreme Court’s decision in McLaughlin is consistent with settled law and should be instructive to other states considering this issue.

Read more about the case here: