This week, the Corpus Christi Court of Appeals reversed a case out of Victoria regarding the rights of a same-sex nonparent. The trial court had dismissed the suit seeking parental rights filed by the nonparent spouse of a same-sex lesbian couple.

Background: The couple was in a same-sex relationship and decided that one partner would have a child using sperm from a donor. The partners signed a donor agreement which stated, among other things, that the parent of the child “shall have absolute authority and power to appoint her life partner as guardian for the child, and that the mother and guardian may act with sole discretion as to all legal financial, medical and emotional needs of the child without any involvement with or demands of authority from donor and donor’s wife.” The agreement further stated that the parent and nonparent “intended to go through the process known as second parent adopting” for the child.

After the child’s birth, the mother and nonparent parented the child together for four years. After they broke up, the parent and nonparent entered into an agreement providing a possession schedule for the nonparent, with consistent reassurance from the mother that the nonparent was a mother for the child and there was no need for court intervention.

Nonetheless, the nonparent partner elected to seek court remedies, asking to be appointed a conservator of the child with an allocation of rights/duties and a possession schedule. The mother sought to dismiss the suit, stating that the nonparent lacked standing to sue.

Standing to sue must be established in any case before proceeding on the merits of the matter, showing that the person bringing the suit has a connection to the matter the basis of the suit.

The nonparent mother claimed that she had standing in this case under section 102.003(a)(9), which provides that a person, other than a foster parent, has standing to bring a suit affecting the parent-child relationship if that person “has had actual care, control, and possession of the child for at least six  months ending not more than 90 days preceding the date of the filing of the petition.” Texas Family Code section 102.003(a)(9).

Facts cited by the nonparent mother in support of her standing included:

  1. Both spouses agreed to having a baby,
  2. the couple would co-parent the baby once it was born,
  3. a donor provided the sperm,
  4. the parties signed a donor agreement documenting the couple’s intent that the nonbiological parent adopt the baby,
  5. The mother agreed that the nonparent would adopt the child,
  6. the nonparent spouse resided with the child for the first four years of the child’s life,
  7. The mother gave the child the nonparent’s last name,
  8. the child called the nonparent “mommy,”
  9. The mother signed a document giving the nonparent spouse temporary custody of the child,
  10. The mother gave the nonparent the legal right of control over the child, the authority to make decisions on behalf of the child, the right to physical possession of the child, the right to make decisions of legal significance for the child, and the right to make educational decisions concerning the child,
  11. the nonparent spouse had actual care, control, and possession of the child for at least six months, and
  12. the child filed her petition within ninety days of that period.

So, based on these facts, the Corpus Christi Court of Appeals found that the nonparent provided enough facts to raise a question about her standing, sufficient to survive the motion to dismiss. They reversed the trial court’s judgment dismissing the case and remanded back to the trial court for trial.

FROM MICHELLE: There is a definite split in the courts of appeals across the state as to what facts show that a nonparent had actual care, control, and possession. It isn’t enough to show that a nonparent had possession of a child, even at the acquiescence of the parent. The evidence must go further and show that the nonparent somehow exercised control over the child. Different courts of appeals in Texas disagree over the amount of evidence that rises to this level. I handled the In re MKS-V case on a very similar issue, which at the time was the first case in Texas and in the Dallas Court of Appeals to establish standing for an LGBT, lesbian nonparent. Of course, in 2009 when MKS-V was decided, the climate for LGBT custody cases was very different than it is today. This case will be one to watch to see if it goes to the Texas Supreme Court for clarification of the differences in the holdings of the different courts of appeals on the same issue.

(I know the lawyers on both sides of this case. I have not been consulted by either side regarding the merits of this case.)

Read the opinion of In re R.E.R. here: 16-0825-Memorandum-Opinion

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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.