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?

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.

 

 

 

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/

 

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

 

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.