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