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

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

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

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

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

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

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

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

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

The other ground for standing under Texas Family Code § 102.003(a)(9) is that he is a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.

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

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

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

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

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

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.