How Divorce is Worse Than a Recession

Can anyone argue that a divorce can be more ruinous to your finances than just about any other financial catastrophe? 

Ron Leiber of the Your Money column in the New York Times writes about the Four Money Talks to Have Before Marriage:

Divorce tends to be emotionally gut-wrenching for the people who go through it (not to mention those around them). But most couples don’t realize that divorce can also be among the most ruinous financial moves anyone can make.

Sure, you could bet big and lose on a single stock or money manager. Or your small business could go bankrupt, taking your life savings with it. But divorce and the costs that often come with it — from legal bills to the sudden need for an additional residence — affect far more people.

The risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

Given the various financial complications, I’ve long wanted to devote a series of columns to divorce and money. This week, I’ll start with a topic that could save some marriages if more people made it a priority. It’s crucial to air and resolve financial disagreements beforehand.

“It’s almost impossible to be hooked up to somebody who has the same balance of spender and saver as you, or expansiveness versus conservativeness or financial circumstances,” says Gregory A. Kuhlman, a New York City psychologist who runs marriage success training programs with his wife, Patricia Schell Kuhlman.

He adds that the mix gets even more volatile with second marriages, when couples may have children, ingrained financial habits and savings or other assets that necessitate the discussion of a prenuptial agreement. “Success in marriage is only partly attributable to compatibility. It’s about how you manage those differences and whether you have a style for doing so that is successful.”

What follows is a list of four financial issues that ought to be near the top of the discussion list before getting married. Please add to the list in the comments of the online version of this article.

ANCESTRY When Lisa J. B. Peterson started her Boston-based financial planning firm, Lantern Financial, she knew she wanted to focus her practice on young professionals. She quickly realized that many of them could use premarital financial counseling and built a program called Harmoney around their needs.

One of the first things she asks clients about is what she refers to as their financial ancestry. “It’s looking back at your own personal past,” she says. “How did your parents deal with money, how does that impact how you deal with it, and how might that impact the couple’s relationship?”

Because so many of our money behaviors are learned, she asks couples to share their earliest money memories — whether their father hid money from their mother or how either parent fretted over the funds available. This can be a particularly intense discussion for people whose parents were divorced, and the stories are sometimes accompanied by tears. “Money is so emotional, and people forget that,” Ms. Peterson says. “You think that it’s just numbers.”

CREDIT While it’s about the least romantic subject imaginable, your credit history holds a chunk of your permanent financial record. It follows naturally from the ancestry conversation, and Lantern Financial pulls credit reports and scores for its clients.

Molly Milinazzo and Scott Donovan, an engaged couple who live in the Dorchester section of Boston and are both 24 years old, were relieved to discover that their scores were within about 15 points of one another when they went through the Harmoney program in May. “A lot of people end up surprised, and it’s best to keep those kinds of surprises at bay,” Ms. Milinazzo says.

Full disclosure on the credit front is useful for two reasons. First, a credit report is, in part, a catalog of past mistakes and overall habits — loan payments you missed or department store credit cards you didn’t really need. That in itself is a good starting point for a discussion about what you’ve learned (or still need to learn) about handling money.

There’s an immediate practical side to this, too. If there are errors or low credit scores that a couple can improve, there may still be time to make the fixes so that the couple can get the best rates on a loan for their first home a year or two later.

CONTROL Figuring out who will pay the bills each month may not seem to be an important conversation or assignment. But it gets tricky when both people want to take it on. “People understand that in a relationship, money is control,” says Jeff Kostis, a financial planner in Vernon Hills, Ill., who walks engaged couples and newlyweds through a checklist of questions. “If you’re not paying the bills, you don’t know where the money is going, and you feel like ‘He doesn’t want me to go out with my friends’ or ‘She doesn’t want me to play in the fantasy football pool.’ ”

For two people who have both been on their own for a while and don’t want to give up doing the monthly financial chores their own way, Mr. Kostis suggests, at a minimum, regular household meetings complete with Quicken or other spreadsheets so that the person writing the checks can keep the other one up to speed. With more stubborn couples, he might suggest handing the controls back and forth at the beginning of each year.

Mr. Kuhlman, who explains the counseling approach he and his wife take with clients at stayhitched.com, says it shouldn’t be surprising that control issues come up constantly when talking about money. “It’s concrete, you can see it,” he says. “It’s not ephemeral or less measurable, like affection.”

A few things that he suggests couples discuss early on: If one person is making most or all of the money, does that person get to make most or all of the financial decisions? If you’re the car aficionado or have researched all of the local school options for the children, do you get to make the decisions about those things? “These are the kinds of things that don’t come out when you’re dating,” he says.

AFFLUENCE Here’s another question that tends not to come up during courtship: Just how rich do we want to be one day? Mr. Kuhlman refers to this more politely as the “desired level of affluence.” “Are our career paths going to be something that pulls us together? Or, more often, are they things that will tend to pull us apart, where we’ll really have to be proactive to make sure it’s under control?” he says.

Mr. Kostis might put it a bit more bluntly, say to a spouse of an aspiring investment banker or corporate lawyer: Are you O.K. with acting essentially as a single parent, with your partner working 80 hours a week until the age of 80? “Not that there is a right or wrong answer,” he says. “It’s just about understanding, going into the marriage, what that would really mean.”

He adds that people in the financial advice business often joke that they spend half their time talking about money and the other half acting as marriage counselor. “But it’s the same communication style,” he says. “You’re giving people permission to be honest without having someone jump down their throat for giving the answer that they really want to give.”
 

 

Money Ruined Our Marriage

One blogger recently claimed that money was the root of all evil in the cause of divorce.  Although I disagree with him slightly -- I believe that a breakdown in communication between spouses is the root cause of most divorces -- communicating about money can certainly cause some major problems in a marriage.

Ron Leiber of The New York Times writes about the five money issues that can cause marital strife and some ideas on what to do about them:

REDUCED CIRCUMSTANCES If your household income and assets aren’t what they once were, it can be a real problem for spouses who are not living in the style to which they have become accustomed. You may have thought that neither of you could possibly be the kind of person who would feel this way, until you found yourself in the thick of it and were surprised you were contemplating leaving the marriage. “Do they decide to check out?” asked Ms. Wang, who is based in Palo Alto, Calif. “Because if they decide to re-engage, it means readjusting expectations about what married life is going to look like. Can they redefine a relationship that’s not based around the lifestyle?”

Sadly, some people simply cannot.

YOUR MISTAKES When one person in the household is the chief financial officer, there’s just one place to point the finger when things go wrong. So in families where the price of the home has fallen, the adjustable-rate mortgage is resetting to a higher payment and the retirement accounts have fallen 25 percent from their peak, the resident money manager sometimes comes under attack.

“If you go into debt, you may smack your head and say ‘How could this have happened?’ and ‘You never told me we couldn’t afford this big of a house,’” said Lili A. Vasileff, a financial planner in Greenwich, Conn., who has taken to calling her work “marital financial mediation.”

“But blame is not a Ping-Pong game,” she said. “This often happens because they didn’t realize that they weren’t making joint decisions.”

The solution is more transparency and conversations about assets, debts and risk. But after years of letting the other grownup in the house make the decisions, people get out of the habit of keeping up with the details.

YOUR PARENTS Some of the toughest financial problems that come up well into a marriage are those that feel like a choice between your spouse and another loved one.

Take an aging parent who needs specialized care but has run out of money or can’t get the treatment that you and your siblings want to provide without everyone spending a lot of their own money.

“Many couples find themselves in these situations ethically where they feel like they have to do something” to help a family member financially, said Jerry Gale, an associate professor of child and family development at the University of Georgia, where he’s part of an effort to integrate traditional therapy and financial planning. “But if I do that, what is the cost to my own family?”

YOUR CHILDREN While the desire to do right by the children often keeps couples together, the financial challenges that children pose can be formidable.

Ms. Vasileff, who is also the president of the Association of Divorce Financial Planners, said this sometimes comes up with a third child whose parents have bled the college savings dry paying for the first two children. “How do we not deprive our youngest child of what our other children had because we had more money then? Is that just life, that there is not enough left?” she said. “That really strikes hard between the two spouses.”

Even if you manage to get the children educated, they may move home in their 20s expecting their old room back. “It really comes to a boiling point when a couple realizes that they have very different expectations for what will happen when their kids reach the age of majority and how their coming home could affect the couple’s postretirement years,” Ms. Vasileff said.

YOUR UNCERTAINTY Most couples reckon with a sort of low-grade, long-term economic uncertainty that comes when so many people around them are losing their jobs. The stakes only get higher as you and your marriage age and you have children or other large financial responsibilities.

Some people handle this better than others, but the pervasive anxiety that often results can slowly wear down a couple.

It is possible, if you’re diligent early on and live below your means, to plan around many of these issues. A larger-than-average emergency fund can provide a better mental buffer against uncertainty. Starting early with college savings or buying long-term care insurance for your parents will help, too.

But few couples get everything right, which is why it’s a good idea to stop every so often and reassess how you’ve arranged your finances. Sometimes even the most basic practices deserve re-examination. Dan Icolari and his wife, who live in the St. George section of Staten Island, have been married for 46 years. But about 20 years ago, they realized that their different approaches to money were the source of a lot of their arguments.

“Rather than fighting, we decided to separate our bank accounts,” he said. “Once we did it, it instantly affected every other part of our relationship.”

Over the course of a long marriage, you’re bound to run up against financial issues that you didn’t plan for. Or you may simply change your mind about your goals and how money affects them.

“Step back from where you are, often in the heat of the emotions or frustration or anger,” said Mr. Gale, the Georgia professor. “I try to remind people to think about how they overcame stress and challenges in the past. I think couples, when things get stressful, it becomes ‘Here’s what I need to do or for you to do.’ But it’s really about what you can do together.”
 

Hat Tip to Daniel Clement for his post Financial Issues That Destroy The Best of Marriages.

I didn't know he was already married when we got hitched. What do I do?

I was recently informed about a situation where a woman married a man who happened to already be married.  The blushing bride had no idea about her husband's prior (and still existing) marriage to the other woman, and understandably was quite embarrassed by her situation.  Perhaps more importantly, however, the woman wanted to know what her legal rights were under these strange facts.

This type of situation is what Texas law refers to as a putative marriage.  A putative marriage is a marriage that is entered into in good faith by one of the parties (here the wife given her lack of knowledge about the prior marriage) but that is invalid (in this case because of bigamy).  Although the marriage in this circumstance is void (because of bigamy), Texas law protects the innocent spouse by making the marriage "putative."  A putative marriage gives the innocent spouse who acted in good faith the same rights as a lawful spouse would have had during the marriage. 

Without going into the details as to proving good faith, the legal effects of the putative marriage are quite significant.  Texas courts have held that a putative spouse has the rights of a lawful spouse in property acquired during the marriage - i.e. community property.  As such, once the putative marriage ends, the putative spouse is entitled to a just and right division of the community property, the right to seek temporary support during a suit to dissolve the marriage, and the right to seek spousal maintenance. 

Bottom line, if the putative relationship was entered into in good faith, then the court will treat the dissolution of the relationship very similarly to that of a "normal" divorce.

Custody Battle: Dad's Story

A New Generation of Fathers is Fighting for Custody -- And A Fair Shake In Court from Working Mothers Magazine.

By: Philip Lerman

“Yes, but who’s going to cook them dinner?” When Ben Oshman got that question from a judge hearing his request for custody of his three kids, he was furious. Because whatever new challenges moms have these days, when it comes to custody, things haven’t changed much for dads—especially the gender-based stereotypes that render them the second most important parent.

But now, dads are fighting back, demanding custody where custody’s due. Their motivation is simple: “I wanted to have kids. I wanted to have the family,” says Oshman, who ended up getting joint custody of his three girls. To him, divorce “didn’t mean I should have to give up my family.”

A groundswell of support is rising up for dads seeking custody, as evidenced by the increasing number of groups like dads rights (dadsrights.org), Custody Warriors (custodywarriors.com) and dadsdivorce.com. “Fathers increasingly want to be more deeply involved with their children”—a desire that doesn’t disappear after divorce, says Danny Guspie, executive director of Fathers resources international, a group that advises divorced dads. “When you see some dads have success, it encourages others.”

Thirty years ago, dads never litigated for custody, says Jeffery M. Leving, a Chicago lawyer at the forefront of the fathers’ rights movement. “Men didn’t place fatherhood at the top of their priorities. Now, if they face a divorce, their children are their main priority, and they will fight to avoid being kicked to the curb.”

Bottom line: dads say they’ve become better parents, so they deserve a better chance. “They’re demanding more fairness,” says Leving, “and sometimes they’re getting it.”
 

Philip Lerman is the author of Dadditude: How a Real Man Became a Real Dad.
 

 

A Divorce Lawyer's Take on Tiger's Texting Troubles

 

Recent media coverage of the Tiger Woods scandal illustrates the speed with which a text message can go from a seemingly “private” communication, for the intended recipient’s eyes only, to Wednesday’s Access Hollywood, David Letterman's Top 10 Tiger Woods Texts List on Thursday , and just about every celebrity gossip website and magazine out there. While Woods’ extramarital affairs would no doubt be at the center of a media frenzy regardless, the text messages provided by Woods’ lovers provides concrete evidence supporting what might otherwise just be speculation. With the text messages circulating the web, delving into the depths of what Woods mistakenly believed to be private communications can be as easy as typing “Tiger Woods text messages” into Google. Various verbatim exchanges between Woods and his alleged paramours are open to the public to read and analyze at their leisure. Unfortunately for Woods, text message exchanges with the subjects of his extramarital affairs are also accessible to his wife, and to the attorney she hires in the event of a divorce.

 

While it might not make the late night talk shows or celebrity gossip sites, texting frequently leads to big trouble for people who are not Tiger Woods. A text message with a paramour can reveal an extramarital affair to the unsuspecting spouse who accidently comes across it, or confirm the suspicions of a suspecting spouse who looks through their cheating spouse’s phone. After a divorce is filed, text messages provide powerful and often embarrassing evidence of infidelity by the cheating spouse during the marriage.

 

In today’s world it is easy to be seduced by the ease and immediacy of text messaging. Texting can be particularly appealing to those involved in extramarital affairs due to the illusion of privacy this method of communication offers. People text things that they may not feel comfortable saying in person or over the phone (for example, “sexting”).  But they often don’t realize the extent to which text messages are accessible by people other than the intended recipient. Texting, like e-mail, credit cards, and phone bills, leaves a trail. Telephone companies keep records that can be subpoenaed and used as evidence of infidelity in a divorce proceeding. Also, there is nothing to prevent a scorned or opportunistic lover from saving the messages, sending them to the cheating spouse’s husband or wife, or in Wood’s case, leaking them to popular media outlets for publication.

 

For the cheating spouse, the moral of Wood’s texting indiscretions is that texting can spell big trouble for you, in your marriage and in your divorce. For the spouse who is cheated on and his or her attorney, use the cheater’s texting troubles to your advantage as great evidence for your adultery claim.

Am I still entitled to my ex's social security benefits after our divorce?

I recently came across an excellent article on the Wall Street Journal's website entitled, How Divorce Affects Your Social Security (Or Not).  As a Dallas divorce lawyer, I am frequently asked about post-divorce entitlement to social security benefits.  From the outset, it should be noted that unlike most other areas of martial property law, benefits arising from the Social Security Act are preempted by Federal Law from being characterized as community property.  Because of this preemption, we have to look to federal law to determine what affect divorce plays on social security benefits.

In general, in order to be permitted to collect benefits under your ex-spouse's earnings all five of the following must be true:

  1. You marriage was at least ten years in length;
  2. You cannot have remarried since your divorce;
  3. You are at least 62 years old;
  4. Your ex-spouse is entitled to social security benefits; and
  5. The benefits you would be entitled to based on your own work history are less than the benefits you would receive based on your ex-spouse's work history.

So, if you meet all five of these requirements, then you'll likely be entitled to up to 50% of your ex's social security benefits.  Note that the amount your ex is entitled to as the divorced spouse does not have any impact on the benefit amount the other spouse receives.  For an "official" explanation of the above, check out the Social Security Administration's website

Hat tip to Kelly Greene at the Wall Street Journal for the idea behind this post.

How To Make It Through The Holidays After Divorce

Are you dreading Christmas? Will it be your first special holiday since your separation or divorce? Are you depressed about not having your children for that special day this year? Whatever the holiday, you are not alone. Here are some survival tips to make it through:

1.  Ensure the Children’s Schedule Is Specific.

Confirm the children’s schedule with your ex as far in advance as you can. If you don’t already have a specific schedule set out, then negotiate those days/times as possible. Your children will appreciate knowing in advance where they will be, especially if they need to let Santa know where to deliver their presents!

2.  Don't Fight Over Which Days You Have Your Children.

Make whatever days your have with your children special. Most children of divorce will tell you that it’s not the quantity of time that is important, it is the quality of time – the memories created – during the time you have. If you really need particular days due to work or visiting relatives, offer to trade days with your ex or give your ex those special days next year. Remember the golden rule: treat your ex they way you would like to be treated, even if it isn't reciprocated.

3.  Do Something Special For Yourself.

Enjoy a day by yourself. Open a bottle of wine, watch basketball on television, take a bubble bath, wrap presents -- do whatever you want to do to relax for one day. That way you'll be ready when the kids get there.

4.  Support The Children's Relationship With The Other Parent.

If you need to speak to someone about your sad feelings, talk to a friend or therapist - not your kids. The children don't need to hear it. They need to hear that it is okay to have fun with their other parent too.

5.  Create New Traditions.

This is a new beginning for you and your children so don't try to replicate the past. Find new ways to celebrate the event. You can preserve some of the past traditions but find new ways of celebrating too.   Make the time you have with your children meaningful and something they will always remember.

6.  Get Outside.

Go for a walk or ski or snowshoe. There is nothing more rejuvenating than being outside with nature and your family. When your kids are with you, take them outside too. A good snowball fight can really build up an appetite. Or, the kids will always remember the time they tackled you in a game of football.

7.  Give of Your Heart.

Most people are tight on money this year, and that is likely worsened if you are recently separated. Do something special for the people you love. Maybe you can write a special little poem for each of them or list twenty ways you appreciate them. Gifts often don't have lasting meaning. Can you even list five gifts you received last year or the year before? It is the feelings of love and appreciation that last forever.

8.  Stay Sober.

If you over-drink, you run the risk of crumbling into a pile of self-pity and depression. Nobody wants to see that and certainly your kids don't need to see it. Have fun but be careful so can keep it together emotionally, especially during your first Christmas since your separation.

9.  Surround Yourself With Positive, Supportive People.

If your family or friends are negative, remind them the season is all about gratitude, love and appreciation. Park you own negativity and search for the positive in everything and everyone, even your ex.

10.  Relax.

Know that in time the holidays will become easier to get through and more fun. Just take a deep breath and get through your first set of holidays. Next year, it will be better.

(Adapted from Brian Galbraith of the Ontario Family Law Blog.)

Affirmed: Geographical Restriction on Sole Managing Conservator's Right to Designate Primary Residence

 The Amarillo Court of Appeals recently issued an opinion, styled In re A.S., upholding the trial court’s imposition of a geographical restriction on the child’s primary residence in a case where the mother was appointed sole managing conservator.

When parents are appointed joint managing conservators, geographical restrictions on a child’s primary residence (for example Dallas and contiguous counties) by courts are more common than not in Dallas divorce and custody cases, as well as divorce and custody cases throughout Texas. In fact, the Texas Family Code specifically provides that the court may impose a geographical restriction on a child’s residence when the parents are appointed joint managing conservators. Tex. Fam. Code §153.134(b)(1)(A). In contrast, the provision of the section Texas Family Code that provides for a sole managing conservator’s right to designate the primary residence of their child does not even reference geographical restrictions, stating instead that a sole managing conservator’s right is subject to limitation by the court. Tex. Fam. Code §151.132(1).

The Amarillo Court in In re A.S. cited the public policy of Texas, in assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, in support of its decision. Further, the Court noted that nothing in the Family Code prevents imposition of a geographical restriction in cases where one parent is appointed sole managing conservator.

This is an important case to keep in mind if you are a parent who may be appointed possessory conservator, or if you are an attorney representing the party who may be appointed a possessory conservator. Cite to the argument provided in In re A.S., and ask the court to impose a geographical restriction on the child’s residence. If you are the sole managing conservator, or the Texas custody attorney representing them, be prepared to address this issue if you wish to have the freedom to move wherever you choose with your child.

Dallas Divorce Lawyer Quoted by Dallas Voice Newspaper

Today, The Dallas Voice ran an article about the M.K.S. appeal that we won this week.  It is a well-written update about the case and the backstory.

A lesbian custody battle could be headed back to Dallas County Judge Tena Callahan’s courtroom after a three-judge panel of the 5th District Court of Appeals, in a surprise move, reversed itself and ruled that Kristie Vowels does have standing to sue for joint custody of her child with a former partner.

Michelle May O’Neill, Vowels’ attorney, said Wednesday, Dec. 2 that the ruling handed down the previous day had come as a complete surprise, since the three-judge panel had already ruled against Vowels in a September decision.

“In September, they issued a ruling that basically created new law in cases like [Vowels’],” O’Neill said. “This ruling held Kris to a very high standard to have standing to sue for custody, and the judges said she didn’t meet that standard. We filed a motion for a rehearing and they denied it. Then we filed a motion for an en banc hearing.”

She explained that appeals are usually heard first by a three-judge panel, but those dissatisfied with the panel’s ruling can file a motion for the entire nine-judge appeals court — en banc — to reconsider a case.

“We filed that about two months ago, and it just sat there. That made me pretty nervous. Usually, they rule pretty quickly on those motions,” O’Neill said. “Then I got an e-mail [Tuesday, Dec. 1]. It said the three judges had vacated their earlier ruling and issued a new opinion that was in our favor. They said that Kris does have standing to sue for custody.”

Scourfield’s lawyers have 45 days to appeal that ruling to the Texas Supreme Court. If they do not appeal, at the end of those 45 days, the case goes back to Callahan’s 302nd District Court for trial.

Vowels and Tracy Scourfield had been a couple for more than four years and had gone through counseling to help them decide whether to have a child together when Scourfield gave birth to their daughter, conceived through artificial insemination, on May 21, 2004.

A little more than a year later, the two women broke up and Scourfield and the little girl moved out of Vowels’ home, although Vowels’ continued to help support the child financially and the women agreed to and operated on a visitation schedule very similar to what is considered “standard visitation” in a heterosexual custody case.

The three-judge panel, in its latest ruling written by Justice Martin E. Richter, described the visitation schedule as allowing Vowels “regular access to and possession of the child.”

But in April 2007, Scourfield abruptly cut off Vowels’ contact with the child. A month later Vowels filed suit in Callahan’s court, seeking conservatorship with a legally binding visitation schedule.

Associate Judge Christine Collie ruled in August 2007 that Vowels did not have standing to sue for custody, and Callahan later affirmed that decision.
Vowels appealed the decision to the 5th Circuit in May 2008.

“We expected the appeal to take six months. It took 18 months,” O’Neill said this week.

She said that even if Scourfield does not appeal to the state Supreme Court, or if she does and that court upholds the appeals court’s opinion, Vowels still would have a fight ahead of her.

“If the ruling remains in place, we still have to go back to Judge Callahan’s court, and she will have to make a decision based on what is best for the child. We’re not out of the woods yet, but at least now we have the right to be on the playground,” O’Neill said.

But, she added, a ruling Callahan handed down in a separate LGBT-related case this year could be a good sign for Vowels.

Callahan in October ruled that two gay men legally married in Massachusetts in 2006 did have the right to seek a divorce in a Texas court, and that Texas’ constitutional amendment banning same-sex marriage did itself violate the U.S. Constitution.

“We know from that ruling [in the gay divorce case] that Tena Callahan is a very brave and assertive judge who’s not afraid to push the envelope when it’s something she thinks is right,” O’Neill said. “She is an outstanding judge, and Dallas County is lucky to have judges of her caliber on the bench.”

O’Neill also said Callahan’s ruling in the divorce case might have played a role in the appeals court’s unusual move in vacating its earlier decision in Vowels’ case.

“It’s very strange. I wish I did know why it happened,” O’Neill said of the court’s reversal. “Maybe Tena Callahan’s ruling in the divorce case had something to do with it. Maybe they just realized that more sympathy is being shown now to people in Kris’ position. I don’t know why they did it. I just know it’s wonderful that they did it.”

Vowels herself said she was surprised and grateful for the appeals court’s ruling.

“We’ve been waiting for so long, and I am just very humbly grateful,” Vowels said Wednesday, adding that even after O’Neill called and told her the news on Tuesday, it took a while for it to really sink in.

“I was up all night. I was in the gym at 3:30 that morning. On my way — I made a point to look at the clock so I know it was 5:31 that morning — I turned onto my street and that’s when it really hit me what was happening, not just for me, but for the whole community,” Vowels said. “This is important to me because it is about my child. But this is a case that could be very important for the whole community.

“That’s when it really hit me, when I really realized the magnitude of what had happened. And I just started grinning. It was a grin of pure gratitude.”

This article appeared in the Dallas Voice print edition December 4, 2009.
 

Dallas Voice article December 4, 2009: Appeals court sends lesbian custody case to trial

Dallas Voice article May 8, 2008:  Lesbian moms in custody fight
 

My previous blog posts on the case: 

Green Light for Suit for Access to Child by Lesbian Nonparent

Dallas Voice Article – Gay/Lesbian Custody Issues

 

Green Light for Suit for Access to Child by Lesbian Nonparent

The Dallas Court of Appeals has given the green light to a nonparent woman to seek access to the child with whom she had a substantial relationship.  In In re M.K.S., the Dallas Court of Appeals held that the nonparent woman had established sufficient evidence of a pattern of conduct over a significant amount of time that the child would be involved with the nonparent woman, thus giving her the right under Texas Law to seek access to the child.

K.V. and T.S. had a same-sex relationship starting in December 1998.  After several years of discussion and several sessions with a therapist, the two women decided to have a child through artificial insemination, with T.S. as the biological mother and sperm from an anonymous donor. The child was born May 21, 2004.

Then, 15 months after the child’s birth, K.V. and T.S. separated, agreeing at the time to a visitation schedule very similar to what is considered a “standard” visitation schedule between divorced parents in Texas: The child lived with T.S., but stayed with K.V. every other Tuesday overnight, every other weekend and every other Sunday from after church to 6 p.m. The women also agreed that K.V. would be allowed to share holiday time, as well. That arrangement lasted for about 20 months, when T.S. unilaterally refused to allow K.V. to see the child anymore.

K.V. immediately filed to establish a legal relationship with the child and for court-ordered access.  She also volunteered to pay child support to T.S. on behalf of the child.  T.S. challenged K.V.'s standing to file the lawsuit. 

Standing is a legal concept that acts as a gatekeeper as to who can file lawsuits.  It's not so easy that anyone can sue for anything.  The laws set out certain people who can file a lawsuit under certain circumstances.  In this situation, a nonparent can only file a suit for access to a child in very limited circumstances.  As in M.K.S., one of those situation is when the nonparent 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 suit.

T.S. argued that the child had not lived in K.V.'s home in the last 6 months as required for standing and that the agreed schedule with the child was insufficient to meet the requirements of the statute.  Judge Tena Callahan agreed with T.S. and dismissed K.V.'s suit for lack of standing.

Yesterday, the Dallas Court of Appeals held:

In the instant case, the record shows that the possession agreement between K.V. and T.S. shared characteristics of a standard possession order.  From August 5, 2005 through April 25, 2007, during the school year, M.K.S. visited K.V. overnight once a week, alternative Sunday afternoons, and alternative weekends beginning on Friday afternoons. During the summer, the weekend visits sometimes started on Thursday afternoon. M.K.S. also visited K.V. on some holidays.

M.K.S. had her own room at K.V.'s house where she kept her toys, movies, a television, and an aquarium. She had a sandbox and a slide set outside. K.V. also modified her house by building a wrap around deck with gates on it so that the child would have a safe environment in which to play. There were occasions when K.V. would pick the child up from school when she was sick and then purchase and administer medication. K.V. was listed as a parent on the child's school records. K.V. also attended school activities and the teachers were aware that K.V. would pick the child up from school during her periods of possession. Witnesses testified that T.S. has referred to K.V. as the child's mother and treats K.V. as one of the child's parents. K.V. also established a college fund for M.K.S. After the relationship between K.V. and T.S. ended, the couple continued to attend church with the child as a family unit. T.S. discontinued K.V.'s visits with M.K.S. on April 25, 2007. The original petition was filed on May 23, 2007.

[T]he record does not suggest this pattern of possession and caregiving was intended to be a temporary arrangement. To the contrary, the possession agreement and the parties' actions evinced an intent that the child occupy K.V.'s home consistently over a substantial period of time. Therefore, we conclude the trial court erred in determining that K.V. did not establish the six month period of actual care, custody, and control requisite to establish her standing to file an original SAPCR petition. K.V.'s first issue is sustained.

Of course, T.S. has the right to file a motion for rehearing in the Dallas court of appeals and/or possibly petition the Texas Supreme Court for review.  But, if this decision stands, the case will return to Judge Tena Callahan's court for a trial on whether possession between K.V. and the child is in the child's best interest.  The challenge at that point will be to overcome the standards set out in the Troxel case, which stands for the proposition that fit parents have the constitutional right to parent their children without interference from nonparents or the government.  Only upon a finding of unfitness in the parenting can a nonparent be given court-ordered rights to a child over the objection of the parent.

Read the whole opinion:  In re M.K.S.

Some of you may recall that The Dallas Voice reported on this case when we filed it in the the Dallas Court of Appeals:  Lesbian Moms in Custody Fight

Also, for more information, see my blog post at The May Firm blog:  Gay/Lesbian Custody Issues