Dallas Family Law Attorney Michelle O'Neil Discusses Appellate Court Opinion Involving the Legality of a Marriage Involving a Transgendered Woman

Can a transgendered person marry an individual of the opposite sex in Texas? A recent appellate court decision relies on a state statute to conclude that someone who has undergone a sex change can marry someone of the opposite sex in the Lone Star State. Dallas family law attorney Michelle O'Neil discusses the implications of that ruling.


What will the Texas Supreme Court do about gay divorce?


The Texas Supreme Court granted petition for review in two Texas gay divorce cases, In re J.B. and State v. Naylor. This means that the Court has agreed to hear the cases as to the merits of the issues raised.  The Court has also scheduled oral argument for November 5, 2013, at 9:00 a.m.  Oral arguments are webcasted live on the internet through the State Bar’s CLE website. We at O’Neil & Attorneys plan to watch the live webcast and live tweet our reactions to the arguments.  So, follow us on twitter @oneilattorneys.

The question squarely before the Texas Supreme Court is the application of the Texas version of the Defense of Marriage Act contained in Texas Family Code section 6.204, which prohibits the state from giving effect to any judicial proceeding that “creates, recognizes, or validates a marriage between persons of the same sex… in this state or in any other jurisdiction” or that gives effect to any “right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex… in this state or in any other jurisdiction”. See statute here. The Texas statute prohibits Texas courts from giving full faith and credit to the laws of other states which grant same-sex marriages.  The federal Defense of Marriage Act (DOMA) found in 28 U.S.C. section 1738C, allows state courts to disregard full faith and credit as it applies to same-sex marriages. J.B. and Naylor challenge the constitutionality of the Texas statute to prohibit a same-sex couple, married in another state but residing in Texas, to obtain a divorce in Texas courts.  You can read the briefs filed by either side in both of these cases here:  In re J.B. Case #11-0024 and State v. Naylor Case #11-0114.

Interestingly, Justice Ruth Bader Ginsburg became the first US Supreme Court justice to preside over a same-sex wedding ceremony last weekend.  In a story by the Washington Post Ginsburg will be first justice to officiate at same-sex wedding, Justice Ginsburg stated, “I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.” This could foreshadow the US Supreme Court’s take on the application of state laws, like the Texas statute, which refuse to acknowledge legal same-sex marriages from other states if a case on point were in front of the US Supreme Court.  The In re J.B. case could be that case following the decision made by the Texas Supreme Court.

The question in Texas remains…. Will the Texas Supreme Court uphold Judge Tena Callahan’s (Dallas’ 302nd District Court) ruling declaring Texas Family Code section 6.204 unconstitutional?  Or, will the Texas Supreme Court agree with the Dallas Court of Appeals decision In re J.B.,  326 S.W.3d 654 (Tex. App. – Dallas 2010) reversing Judge Callahan and upholding the statute?  Many rumors are swirling in legal circles over how the Texas Supreme Court may rule, but until they do, we will not know.

See my prior blog posts about the In re J.B. case:

Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional

Dallas Judge Tena Callahan speaks publicly for the first time since her controversial ruling

Same-Sex Divorce in Texas:  Austin Court of Appeals opens the door


Last week's decision in US v. Windsor

Even in light of last week’s decision in US v. Windsor, ruling parts of the Defense of Marriage Act unconstitutional, many issues still remain in the evolving debate of marriage equality. One which I see almost on a daily basis involves the right or ability of same sex couples who are legally married to break up and divorce. In other words, a couple goes to a state that sanctions same sex marriage and has the ceremony performed, then that couple moves to Texas where they decide to break up. Because Texas has a state-version of DOMA that prohibits recognition of legal same sex marriages in other states, and because section 2 of the federal DOMA does not require Texas to give full faith and credit under the US Constitution to the marriage laws of other states, couples may be left with no remedy. In Texas, we cannot file a divorce for those legally married, same sex couples. If they own property together, we cannot use our state’s marital property division laws to apportion their property. We cannot help a same sex spouse who, through disability or lack of earning capacity, cannot support himself or herself after depending on the other spouse for financial support during the marriage.

Likewise, if a legally same sex married couple lives in Texas when one spouse passes away, the surviving spouse will be considered the surviving spouse for purposes of federal laws such as social security, but not for Texas intestate succession (death without a will).

Steve Sanders (@stevessanders), of SCOTUSblog, puts it this way in his post Next on the agenda for marriage equality litigators:

“In striking down DOMA’s Section 3, Windsor addressed the problem of “same-sex couples who are married for the purpose of state law but unmarried for the purpose of federal law.” But it did not touch what the Court more than 70 years ago (in the context of divorce) called “the most perplexing and distressing complication[] in the domestic relations of . . . citizens”: the idea that a person could be married in one state and unmarried in another. This is a complication that more than 30 states, backed up by DOMA’s Section 2, still inflict on same-sex couples. Their mini-DOMAs are understood to deny legal recognition to the marriages of same-sex couples who migrate from states where such marriages are perfectly legal; some expressly purport to “void” such marriages. Such laws transform married gays and lesbians into legal strangers, effectively divorcing them against their will by operation of law.

This is a serious problem of both constitutional law and federalism, and it deserves a central place in the landscape of marriage equality litigation going forward. It has been a sleeper issue throughout the marriage equality debate, and I predict it is about to emerge front and center.

More than 114,000 same-sex couples have legally married in the United States, according to UCLA demographer Gary Gates, a number that is growing every week. Extrapolating from census data on Americans’ state-to-state migration, we can assume that several thousand of these couples change states every year for employment, education, family, or personal reasons. Non-recognition laws threaten these couples with serious harm. If two persons who were once married in Iowa or New York are suddenly rendered legal strangers in Indiana or Michigan, their property rights are potentially altered, spouses disinherited, children put at risk, and financial, medical, and personal plans thrown into turmoil. This is an array of problems and indignities that no rational legal system should tolerate.”

Frankly, we have legal chaos for people in these predicaments. Spouses don’t know what to do. Certainly the emotions of a break-up don’t wait around for the law to catch up. Although it is no conciliation prize, there is almost certainly going to be a case move up to the Court in the next year or so that will provide the Court the opportunity to rule on these issues.

Sanders opines on the basis for the arguments that could be used based on Windsor to support striking down section 2 of DOMA, as well as the state-versions of DOMA:

“[A] person who legally marries in her home state, then pulls up stakes and moves to another state, acquires a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of her marriage. This liberty interest creates a right of marriage recognition that is conceptually and doctrinally distinguishable from any constitutional ‘right to marry’ in the first instance. It is a neutral principle, grounded in core Due Process Clause values: protection of normative expectations about marital and family privacy (if a state can’t take away your child without due process, how can it take away your spouse?); respect for established legal and social practices (state-to-state marriage recognition is a longstanding default rule); and rejection of the idea that a state can unilaterally sever a legal family relationship without important, proven justifications.

Did the Court today provide any support for my argument? To be sure, Justice Kennedy’s Windsor opinion is solicitous toward the prerogative of states to define marriage for themselves. But his analysis is entirely in the context of vertical federalism: federal law, the Court said, may not ‘injure’ same-sex couples whom a state has seen fit to “protect” with the status of marriage. The key here, I think, is that many of the Court’s rationales for condemning DOMA also implicate horizontal federalism: the obligations states owe one another as coequal sovereigns.

If, as the Court says, it is intolerable to have ‘two contradictory marriage regimes within the same State,’ then why is it more rational to have two contradictory marriage regimes in the same country – especially when the practical effect is to disrupt stability in legal relationships, endanger property and parental rights, and impede same-sex couples’ right to travel and take up residence in a new state? Just like Section 3 of DOMA, these conflicting state regimes ‘place[] same-sex couples in an unstable position of being in a second-tier marriage.’ The Court acknowledges that the ‘incidents, benefits, and obligations of marriage … may vary … from one State to the next.’ But it does not expressly or even implicitly say it makes sense for the very status of marriage to vary from state to state.”

Most of the laws pertaining to the break-up of a marriage are based in state law, not federal. One exception to that will be how to address tax filings. When a state denies the existence of a marriage, yet the couple continues to be married under federal law for purposes of filing income tax, certainly discriminate and chaos ensues.

Some states allow for common-law, first-cousin, or uncle-niece marriages that other states don’t recognize. Yet those couples are permitted to divorce in a state that would not have created that marriage. Section 2 of DOMA simply creates an exception to the longstanding rule of divorcing what you might not have joined together.

Unfortunately, the ruling in Windsor may have, at least temporarily, exacerbated the problems same sex married couples face, not made it better.

Love Wins: Section 3 of DOMA is Overturned

 The US Supreme Court issued their decision today in US v. Windsor regarding the federal government’s right to deny benefits to legally married same sex couples. SCOTUS ruled that section three of the Defense of Marriage Act, the section that prohibits same sex federal benefits, is unconstitutional on the grounds of equal protection. This is a monumentous day for same sex couples – giving same sex marriages equal status with heterosexual marriages at the federal government level. This decision is not binding on Texas state law, however. Section 2 of DOMA says that states do not have to recognize same sex marriages from other states, and that section still stands today. The Windsor opinion gives hope for the future of the rights of LGBT couples to marry (and divorce).

James Esseks , Director of ACLU Lesbian Gay Bisexual Transgender & AIDS Project interpreted it this way:
• “The core provision of DOMA required the federal government to treat the marriages of same-sex couples one way (as though they had never happened) and the marriages of straight couples a different way (respecting their validity in 1,138 federal contexts). The Supreme Court struck down DOMA both because of that unequal treatment and because the federal government had improperly taken over the states' normal role of deciding who is married and who isn't.”
• “The demise of DOMA section 3 is also a crucial milestone on the road to LGBT equality because DOMA is the last federal law that requires discrimination against lesbian, gay, and bisexual people. That makes the Windsor decision, which wipes away the core of DOMA, the capstone on decades of work to rid the country of codified anti-gay discrimination at the federal level.
• “So Windsor isn't just the death of the core of DOMA, it's the end of official federal discrimination against lesbians and gay men. That's quite something to celebrate!”

Read DOMA Unconstitutional!

As I predicted in my blog post in March – DOMA – does it matter in Texas – this opinion has little effect on each individual state’s right to pass their own laws about same sex marriages. Until there is a challenge to Section 2 of DOMA, squarely challenging DOMA’s overriding of the full faith and credit clause of the US Constitution, same sex couples are stuck with the status quo in Texas. A couple who is married in a state that recognizes same sex marriages, who then moves to Texas and breaks up, cannot get divorced under Texas laws.

The next big thing on the horizon in same sex rights in Texas will be the Texas Supreme Court’s opinions in In re J.B. and H.B. and State v. Naylor and Daly. It is widely perceived that the Texas Supreme Court has been holding their decisions in these two cases about same sex marriage, pending the US Supreme Court’s opinion in Windsor. The Texas Supreme Court will have to interpret the US Supreme Court’s verbiage in determining the challenge to section 2 of DOMA raised in those cases. We can expect that these cases will be appealed to the US Supreme Court for the next term, raising squarely the challenge to section 2 of DOMA.

How is the gay marriage controversy impacting the state of Texas and the family law practice area? What issues do attorneys need to be aware of?


The gay marriage controversy is forcing all citizens of the state of Texas to reexamine what “marriage” means. Is marriage simply a religious concept implemented through the government that supports the traditional one man/one woman viewpoint? Certainly that is the current state of the law in Texas.  But many citizen voters seem to be expanding their consideration to include broader definitions of relationships. Gay marriage is one of these broader definitions.  Many citizen voters seem to be more willing to accept a civil definition of a relationship which the government sanctions.  Presently we call this “marriage” but many would prefer to call this a “civil union” to avoid conflict with traditional religious notions of marriage. Reasons for this expansion of viewpoint may be the recognition that gay relationships have received on television and in the media as well as the increasing likelihood that our neighbors, friends, and relatives may be gay and want to be married.

Another trend related to the gay marriage trend is the trend, especially among young people, away from traditional ceremonial marriage. Some have a jaded viewpoint of marriage because of experience with divorce and, therefore, simply don’t want to get married at all leaving themselves free to move in and out of relationships without the complications marriage brings. Others find that common law marriage has become more societally acceptable than in the past.

The country and maybe even our world awaits the imminent rulings from the US Supreme Court on the Defense of Marriage Act. The Court will take its summer break at the end of the month, so most Court scholars expect decisions in the two gay-issue cases to come down in the next 7 days.  We are watching and will report.


DOMA -- does it matter in Texas

Someone asked me today… if the US Supreme Court challenge to DOMA (federal Defense of Marriage Act) succeeds, will anything change in Texas?  The truth is that even if the litigants in US v. Windsor prevail, they have challenged section 3 of DOMA, which prevents the federal government from recognizing a legal same-sex marriage granted by a state that has laws for such.  The litigants there did not challenge section 2 of DOMA, which is the section that says that states do not have to recognize same sex marriages from other states. (See the wiki on DOMA here.) Section 2 overrides the US Constitution’s provisions that require each state to give “full faith and credit” to the laws of other states. (See the wiki on Full Faith and Credit Clause here.) In 2003, Texas passed its own version of the Defense of Marriage Act, mirroring the federal version.  (See Governor Perry’s site on Texas’ Defense of Marriage Act here.)

So, in the event that the US Supreme Court agrees with the litigants in Windsor, the likely outcome of striking down section 3 of DOMA will only provide federal benefits to same-sex married couples, but will have no effect on each state’s rights to pass their own laws regarding same sex marriages.  Until Congress or the US Supreme Court is faced with a challenge to section 2 of DOMA, squarely challenging DOMA’s provisions overriding the US Constitution, same sex couples are stuck with the current situation in Texas.  That means that a couple who is married in a state that recognizes same-sex marriage, who then moves to Texas and breaks up, cannot get divorced under Texas laws.  That couple faces a decision to move to a state that provides for divorce of same-sex marriages in order to legally dissolve their marriage.  Texas provides very little remedies for these couples under the present laws.


U.S. Supreme Court Hears Arguments in Two Cases Involving Same-Sex Marriage

On Tuesday, the Supreme Court heard arguments in Hollingsworth v. Perry, involving the constitutionality of Proposition 8 (California’s controversial ban on same-sex marriage).  Due to issues regarding standing (the legal right of a party to bring  a suit), the real question facing the Court is likely not whether it would strike down Proposition 8, or what the broader effect of such a decision might be, but whether it is going to reach the merits of the case at all.  Given the questions and comments at argument, the Court may not weigh in on the issue of same-sex marriage.  We will have to wait and see.

Yesterday, in United States v. Windsor, the constitutionality of the federal Defense of Marriage Act (defining marriage as between a man and a woman) was before our highest court. During argument, Justice Kennedy indicated that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.  However, if the Court was to strike down the law based on states’ right, it would not give same-sex couples the legal right to marry under the Constitution.  From questions and comments during argument, it appears unlikely that the Court would strike down the DOMA because it denies same-sex couples legal equality under the Fifth Amendment (by denying them the right to marry).  It looks like the constitutionality of same-sex marriage will not be reached in this case either. The Court, although it has been dealing with gay rights cases for years, has never spelled out a specific constitutional standard for judging laws that allegedly discriminate based on sexual orientation.   

Regardless of whether the Supreme Court reaches the constitutionality of same-sex marriage in Hollingsworth or Windsor, this is a matter requires clarity and guidance from our legislature.  Until that happens, we must look to our courts to fill in the gaps.  These two cases are the first of many more to come.  Check our blog for updates.

To read more on this subject:

Argument recap: DOMA is in trouble (FINAL UPDATE)

What will the Court do with Proposition 8? Today’s oral argument in Plain English


Both Moms Have Parental Rights


Egg donor mom and birth mom both given parental rights.

So, the question is what happens when two women are in a relationship, woman #1 donates her egg to woman #2 and woman #2 gives birth to the baby? Which one is the “mother”?

Under Texas divorce law, the answer is that woman #2, as the birth mother, is the legal parent and woman #1, as a donor under the law, has no parental rights.

But, a Florida state court of appeals has ruled differently in a case out of Daytona, Florida. The court of appeals held that state law has not kept up with the times, giving the egg-donor woman should have parental rights too. The court pointed to the factors in the relationship to make its decision. The couple had been in a committed relationship for 11-years. The two women decided together to have a child and went to counseling to prepare for it. They discovered that woman #2 was infertile. They went together to a fertility specialist and woman #1 became a donor. The fertilized egg was implanted in woman #2’s womb and the baby girl was born. The couple gave the child a hyphenated version of their last names, although the birth certificate bore only the name of the mom who carried the baby to term. The child treated both women as parents even after they split up. All of these factors together influenced the Florida court to decide to give the woman #1 parental rights. The appeals court sent the case back to the trial court to establish custody, visitation and child support rights, focusing on the child’s best interest.

Unfortunately, this result would be very different, at least in the opinion of this Dallas divorce attorney. Texas has specific laws that protect the parental rights in a donor situation and which specifically decline to find parental rights in the donor woman. The best choice for lesbian or gay parents in Texas is for the non-biological-parent partner to adopt the child in order to have legal status as a parent.

See the article in the Orlando Sentinel here: Both lesbian moms have parental rights, Daytona court rules in custody dispute.


Dallas Same Sex Custody Dispute: Battle For Recognition of Parental Rights by LGBT Parents

Child custody battles are always difficult, and can be ugly. But a recent Dallas child custody dispute shows the lengths that gay parents must go to fight for the right to parent their non-biological children if they split up from the child’s biological parent. In the case fought out in Dallas family law courtrooms, a Texas mother petitioned for custody of a child she had raised since birth with her lesbian partner (the child’s biological mother).

The former partner denied the non-biological parent’s right to child custody and a three-and-a-half year legal battle ensued as the non-biological mother sought to have her parental rights recognized in Texas courts. Ultimately, she was successful on the first hurdle of her child custody battle: the right to sue for child custody (referred to as standing). But after nearly four years of emotional and financial costs, and no guarantee that she would win physical or legal custody rights, the mother decided to end her legal battle. In a statement released to the press, the mother said that she chose her daughter’s quality of life and happiness over being right.

Legal Options for Gay Parents to Maintain Parental Relationships

While recognition of the status of same-sex relationships is advancing state-by-state, same-sex partners (and former partners) still face precarious legal status on many issues including recognition of marriage, civil unions, and partnerships, rights to parent children from a same-sex partnership, inheritance rights, and rights to make end-of-life decisions, among many other civil rights.

In Texas, lesbian and gay parents now have the right to sue for child custody if other Texas courts decide to follow the precedent established by the Texas appeals court in the Dallas same-sex custody case (The Texas Supreme Court denied review of the decision, which gives it more weight). But whether a gay or lesbian parent will be awarded child custody is another matter. In most cases, a gay or lesbian parent will stand on firmer ground if the mother or father adopts the child or children. Adoption gives the non-biological parent a legal recognition of their parental rights. For advice and counsel on this evolving area of the law, consult a Texas family law attorney with experience working with LGBT issues.

Same-Sex Divorce in Texas: Austin Court of Appeals Opens the Door


Last Friday the Third Court of Appeals at Austin affirmed a Travis County trial court’s ruling granting a same-sex divorce in Texas, State v. Naylor and Daly. The appeal from the divorce judgment was brought not by either of the parties, as they had agreed upon the division of property and the child custody modification included in the decree the trial court approved, but by the State of Texas. 

Appellees Naylor and Daly were married in Massachusetts in 2004. After their marriage they returned to their home state of Texas, adopted a child and started a real estate business together. The couple separated in 2009 and Naylor filed a SAPCR action. They settled their child related issues and the trial court entered an agreed order. Then, Naylor filed a petition for divorce. After a contested hearing lasting two days and a warning from the trial court that the parties had a “legal mess” that they might be better off settling than submitting to the court, Naylor and Daly reached a final settlement. The parties proved up their divorce and the trial court rendered judgment at that time. Only after rendition of the final judgment did the State file their intervention. The trial court denied the petition as untimely and entered the decree over the State’s objection. 

On appeal, the State argued that the trial court lacked subject matter jurisdiction over the parties’ divorce according to Section 6.204 of the Texas Family Code (prohibiting state agency or political subdivision from giving effect to “right or claim to any legal protection, benefit, or responsibility asserted as a result” of same-sex marriage).  But the Austin Court of Appeals, like the trial court, found that the AG’s intervention after rendition of the final judgment came too late. Further, the State failed to meet the requirements for application of the “virtual-representation doctrine”, so this exception to the rule that an appeal is only available to the parties of record did not apply. 

The Austin Court’s opinion emphasizes the fact that this was a private divorce proceeding – not a challenge to the constitutionality of a statute (which would have allowed the State to intervene); it is not a suit to declare the statue unconstitutional or to enjoin its enforcement. As noted, there are interpretations of TFC §6.204 that would allow the trial court to grant the divorce without findings the statue unconstitutional, thus the issue of the statute’s constitutionality is not reached in the opinion.

Practically speaking as Texas divorce attorneys, we think this opinion opens the doors for trail courts here in Dallas and across Texas to grant same-sex divorces provided the State does not intervene before rendition. Provided same-sex couples agree on the division of property, or use some means of alternative dispute resolution or collaborative law to reach an agreement, they can conceivably file a petition for divorce (possibly under initials instead of their full names) then proceed with the prove-up. If the trial court signs off before the attorney general can intervene, then they are divorced under the laws of our State. But, keep in mind that the parties must agree and keep a low profile for this strategy to succeed. Should the parties seek media attention inviting State intervention prior to rendition of the divorce judgment, then the outcome will likely be very different, like In re J.B., from the Dallas Court of Appeals last year.

Hat tip to the Jennifer Cochran for her January 7, 2011 post  “Same Sex Divorce Upheld in Texas”.


Learning Lessons From A Tragedy

Some of you may have heard about the tragic suicide death of Debie Hackett recently.  Her family drama has been played out in the local media over the past few months regarding the litigation between Ms. Hackett and her former lesbian partner Ms. Ferris. 

Ms. Ferris is the biological parent of the child.  Ms. Hackett sued Ms. Ferris for court-ordered access to the child when their romantic relationship ended.  The trial court initially held that Ms. Hackett had "standing to sue" because she had "actual care, control, and possession" of the child for at least 6 months ending in not less than 90 days before filing the lawsuit.  The Dallas Court of Appeals upheld that ruling.  (See article from The Dallas Voice here.)

But, standing is not the end of the battle, but only the beginning in a suit between a parent and nonparent for court-ordered access to a child.  Once granted standing, the nonparent still has to overcome the constitutionally-protected presumption in favor of a parent's right to make parenting decisions without interference from anyone, including a former romantic partner.  To overcome this high hurdle, the nonparent must prove that the parent's decisions will result in "significant impairment to the child's physical health or emotional development".

In the Hackett v. Ferris case, a jury decided that Ms. Ferris, the parent, was a fit parent, precluding Ms. Hackett from seeking orders related to the child.  I am sure that Ms. Hackett was devastated by this ruling.

Ms. Hackett was, no doubt, bolstered by the judge's grant of standing letting her continue with her case.  But, that just set her up for greater disappointment when she ultimately failed to prevail.

Here's the op-ed piece that I wrote for The Dallas Voice today: 

Learning Lessons From a Tragedy

The death of Debie Hackett was a tragically shocking end to a family drama that has, to some extent, played out in the local Dallas media. Through her experience and even through her tragic death, she has provided an opportunity to educate many who are in similar situations. There seems to be quite a bit of misinformation about her family law case and the litigation that recently ended.

Many people live in families with children that they emotionally consider as “their children”. Knowledge of how the law applies to their relationship with the children in their lives gives power, so even in the midst of this tragedy there is something to be learned.

Texas law has a very specific definition of a “parent”. Texas Family Code defines a parent as:

·   the mother (biological);

·  a man presumed to be the father (because he was married to the mother when the child was born or at the time of conception);

·  a man legally determined to be the father;

·  a man who has been adjudicated to be the father by a court of competent jurisdiction;

·  a man who has acknowledged his paternity under applicable law; or,

·  an adoptive mother or father. 


No matter how much love, caring, or emotional bonding exists, if someone does not fall into one of these categories, then they are not a “parent” in the eyes of the Texas courts or legislature.

While a person may feel emotionally connected to a child, the law provides no status for a person who feels-like-a-parent. Even if a person is treated like a parent, or even considered a parent by the child, that person cannot be elevated to the legal status of a parent if she does not meet one of the statutory definitions.

So, you either are a “parent” under the law, entitled to the legal privileges and obligations of a parent, or you are not.

Parents have certain rights that are guaranteed under the United States Constitution as well as the laws of each state. The most fundamental of these rights is the right to make parenting decisions without questioning or interference from those outside the parenting relationship. In other words, as long as the parent makes decisions that are not harmful to the child, the parent has the sanctity to make decisions for the child. Only when a decision can bring harm to a child does the law provide a method of reviewing parental decision making.

The right to make parenting decisions includes the right to decide who the child can be around, spend the night with, and visit. 

This right is fundamental, like the freedom of speech or freedom of religion, and as a result is heavily protected by federal as well as state law, and highly regarded by most of our courts.

So, in Ms. Hackett’s situation, her former partner was the legal parent of the child and had the right to decide whether the child would associate with Ms. Hackett after their break-up. Only by proving that the former partner’s parenting decisions are harmful to the child in a court-at-law would Ms. Hackett have been able to have a court overrule the parent’s decision to exclude Ms. Hackett from the child’s life. The jury trial that Ms. Hackett and her former partner went through in December involved the question of the parent’s fitness in her decision-making. The trial was not about whether the parent versus Ms. Hackett should have custody, what time the child should spend with either of them, who should decide what school the child attends, or even an allocation of child support. 

The jury decided that the parent was a fit parent. That decision precluded Ms. Hackett from seeking any other orders regarding the child, such as the right to visitation over the parent’s objection.

Some believe that the law discriminated against Ms. Hackett because of the nature of their same-sex relationship. However, Ms. Hackett stood in the same position as a heterosexual person that does not meet the legal definition of a parent. The law applies equally to any person that is not a parent seeking to intervene in the parenting relationship.

For example, consider a heterosexual married couple where one member of the couple has a child from a prior relationship. When that couple breaks up, the partner who is not a parent would be in the same situation as Ms. Hackett, left to the parental decision-making of the parent to continue the relationship with the child. Barring proof that the parent is unfit – that her decisions as a parent are harmful to the child – the non-parent would have no right to interfere.

Grandparents often fall into this problem as well. Many grandparents assist in parenting their grandchildren yet cannot seek court ordered access to the grandchild absent proof of parental unfitness.

As a Dallas same-sex custody lawyer, I counsel many non-parents in situations like Ms. Hackett’s.  The most important piece of advice I give them is to adopt their partner’s child while the relationship is good and everyone is on the same page.  Adoption grants the legal status as a parent and the legal rights and constitutional protections that comes with it. This then allows — mandates — a relationship between the adoptive parent and the child after the romantic relationship with the other parent ends.  Without adoption, the law provides no relief from the high hurdle of the parental presumption over which a nonparent must cross to even have the chance of gaining court-ordered conservatorship, possession with and/or access to the child over the legal parent’s objection. 

The current state of Texas law draws no line regarding the gender of the parent or parents a child has. So, a child, by adoption, can have two moms or two dads, provided a judge finds such adoption to be in the child’s best interest. 

Michelle May O’Neil specializes in Texas family law cases and works specifically with gay parents regarding relationship and custody issues. She is the author of two books, All About Texas Law and Kids, published in 2010, and The Basics of Texas Divorce Law, published in 2011. Ms. O’Neil practices law with her firm O’Neil Attorneys in Dallas, Texas.


How Does a Gay Break Up Differ From A Straight Divorce

Frederick Hertz asks in the Huffington Post Blog Is Gay Divorce Any Different Than Straight Divorce?  He points to three areas where gay breakups are different:  historical legacy, legal complexities, and cultural dimensions.  Historically speaking, same sex couples could not marry until recently in any state.  So, most same sex couples in long-term relationships have spent a good amount of time living outside of traditional marital law.  This means that a same sex couple's breakup may have some issues that straddle the lines between nonmarital relationships and traditional marital law.  I think Hertz, an attorney in California where gay marriage is recognized, means a situation where maybe the couple gets married in California but owns property in a state that does not recognize their marriage, creating difficulties in dividing assets and such.

The second place that same sex breakups differ from straight divorce addresses the inherent legal complexities in same sex relationships.

For some same-sex partners, the inability to legally marry relegates their break-up to the murky world of non-marital law, which often involves complex theories of equitable partition, implied contracts, and partnership law. It can also create serious problems around the parentage and custody of kids. See www.NCLRights.org for more about those issues. And, even for those whose lives are covered by marital law (because they live in a recognition state and entered into a formal registration or marriage), the lack of federal recognition can create serious confusion or even blatant discrimination. There is no tax recognition of the spousal relationship, and so transfers of assets can trigger capital gains, income, or gift tax liabilities. The ERISA rules preclude the assignment of a pension or retirement benefit, which also can lead to additional taxation and enforcement problems for divorcing couples. Because of the legal complexities, fewer divorce lawyers know how to handle same-sex dissolutions, and so even finding a qualified lawyer can be a challenge.


The third difference involves the cultural differences between gay people in general and straight people.  For example, the traditional gender roles that apply (globally speaking) to straight folks may not apply to gay couples.  And, gay people may have resistence to involvement with the judicial system.

My opinion is that every couple, gay or straight, has their own dynamic and set of "issues".  Putting any couple "in a box" of stereotypes is impossible.  Breakups between same sex couples are more complex because, at least in the context of Texas divorce law, there's very little law that directly defines their relationship or breakup.  The courts have ruled that we don't have gay divorce in Texas. The most common sensical approach for a gay couple is to solidify their relationship in the beginning with a domestic partner agreement that defines the rules as they apply to that couple and contractually determines how they will break up.  There is also a lot of litigation right now regarding nonparent custody in Texas -- including same sex custody suits.  Although the boundaries of when a nonparent may sue for custody of a child that is not biologically or adoptively related to them remain murky, there are an abundance of cases exploring the issues.

Lambda Legal has a great chart that summarizes the current state of affairs for same-sex couples. Check it out at: http://www.lambdalegal.org/publications/articles/nationwide-status-same-sex-relationships.html


In A Dallas Texas Child Custody Suit, Making the Toughest Decision

The closing chapter was written on a long Dallas Texas child custody battle by Kristine Vowels, a non-biological lesbian mother of her former partner's daughter, on October 8, 2010.  After 3 1/2 years of battling just to have the right to sue for access to the child -- called standing -- Kristie decided to end her fight. 

In her words contained in the Vowels' Notice of Nonsuit filed in the M.K.S. suit in the Dallas County District Family Court, Kristie said:

"After three and a half years of contested litigation, in the interest of the child she will always consider to be her daughter regardless of the legal definition, KRISTINE VOWELS has decided she can no longer prosecute this suit against TRACY SCOURFIELD. Throughout this process, KRISTINE VOWELS’ love for her daughter endures. This decision neither changes nor lessens the bond she feels for her daughter or her desire to someday have a relationship with her.

"This is a decision borne purely from KRISTINE VOWELS love for her daughter. Although suffering immeasurable pain at the thought that she may never see her little girl again, KRISTINE VOWELS wants her daughter to know this story, to know that she fought for her, and to know that in the end, when one has to decide if it is more important to be right or to be happy, KRISTINE VOWELS chose her daughter’s happiness and quality of life over her own happiness - a true gesture of the selfless love that a parent has for their child.

"Faith, hope, and love for the little girl she has known as her daughter since before she was born compelled KRISTINE VOWELS to file this lawsuit on May 23, 2007. This love sustained KRISTINE VOWELS through three-and-a-half years of contested litigation and appeals, on a roller coaster of defeat and then victory in the Fifth Court of Appeals, through the Texas Supreme Court, and then back to this Court again, with the acknowledged right of standing to pursue her suit under the Texas Family Code. It was her hope that allowed KRISTINE VOWELS to withstand the barage of claims that she was not nor would she ever be a parent to her little girl because the laws of our State would never recognize her legal right to fight for a chance to have a relationship with her daughter. It was her faith that allowed the dream of someday holding her daughter in her arms, hearing her laugh, and seeing her smile, to survive in KRISTINE VOWELS despite the fact that she was not allowed to see or even speak to her little girl since the day she was ripped away forever on April 25, 2007.

"The same faith, hope and love that began and sustained this case and that leads KRISTINE VOWELS, after much soul searching and prayer, to make the ultimate sacrifice and end this lawsuit. Today, on October 8, 2010, out of love for her daughter and with hope and faith in the woman she will grow to become, KRISTINE VOWELS asks this Court to grant her request to nonsuit this cause, and allow the little girl affected to wake up tomorrow in a home no longer shadowed by the unrest and uncertainty of pending litigation."

This case has set a very important precedent in LGBT gay parenting child custody cases, especially because it was decided by the court of appeals sitting in Dallas Texas, widely received in Texas as the most conservative of the elected courts.  For future litigation in Dallas and around the area, Vowels' case will make the journey a little easier.  But, sometimes the battle overwhelms the war.  Sometimes, even in litigation, a person must ask, "would I rather be right or be happy?"  or "would I rather by right or my child be happy?"  It is based on this very question that Kristine Vowels made this decision to end her battle. 

The Dallas Voice ran a series of 4 articles over the years, detailing Vowels efforts to gain access to her daughter:

October 15, 2010 Vowels Drops 3 1/2-year Custody Fight  or read the pdf version

May 8, 2008 Lesbian Moms in Custody Battle

December 9, 2009 Appeals Court Sends Lesbian Custody Case To Trial

August 5, 2010 Vowels Custody Case Returned to Trial Court for Hearing

Click this link For more information on same-sex custody litigation in Texas

Lesbian Custody Rights Going to Trial

The Dallas Voice reported today on the Dallas County lesbian custody case being returned by the Texas Supreme Court to trial.  David Taffet, reporter with the Voice, noted on the standard that the non-biological mother will have to meet to see her daughter.

Read the entire article here: Vowels Case Returned to Trial Court for Hearing

Dallas Gay parenting advocate attorney Michelle May O’Neil explained that non-biological parents in custody and visitation cases have to meet what is called the Troxel standard, named after a U.S. Supreme Court ruling in a child custody case.

“The presumption is that parents act in the best interest of their children,” O’Neil said.

Vowels said her former partner is a good mother. But whether or not Vowels gains custody could revolve on whether she and her attorneys can show any flawed decision-making on the part of her former partner.

“The flaw is that she unilaterally ripped the child from someone the child called mom,” O’Neil said.

O’Neil said that the case is being cited around the state and will affect heterosexual stepparents, grandparents and other caregivers as well. “It’s legally the same question,” O’Neil said.

The article points out that the way to avoid being in a custody battle like the one that Ms. Vowels find herself is to adopt the non-biological child as soon as possible after the birth, while the relationship remains on good terms.  Trying to adopt after the break-up is too late.

For more information about the Vowels Case, see these prior blog posts:

Rights of Gay Parent Head to Trial in Dallas County, Texas

Dallas Divorce Lawyer Quoted by Dallas Voice Newspaper

Green Light for Suit for Access to Child by Lesbian Nonparent



Rights of Gay Parent Head to Trial in Dallas County, Texas

 Texas Supreme Court returns custody case between lesbian parent and partner to Dallas District Court for trial

The rights of a lesbian partner to participate in parenting her former partner’s child will be set for trial in the 302nd Judicial District Court.  After the Texas Supreme Court declined to hear the biological parent’s appeal challenging the partner’s right to sue for access to the child, the Dallas Court of Appeals returned the case to the trial court. 

Kristie Vowels and Tracy Scourfield were a couple for more than four years and decided together to have a child, conceived by Scourfield by artificial insemination.  A year after the child’s birth, the couple broke up and Scourfield moved out of Vowels’ home with the child.  Vowels continued to have contact with the child by agreement on a schedule similar to that of divorced heterosexual parents.  Following a disagreement between Scourfield and Vowels, Scourfield denied Vowels access to the child, resulting in Vowels filing suit for court-ordered access to the child.

A three-judge panel of the Dallas Court of Appeal issued a controversial ruling in December 2009 that Vowels had the right to seek access to the child based on a law that provides a person with the right to sue for such rights after she has had actual care, control and possession of the child for at least 90-days prior to filing the suit.  Vowels’ access by agreement with Scourfield was deemed to be sufficient to meet the requirements of the statute.

Scourfield sought to have the Texas Supreme Court overturn the decision of the Dallas Court of Appeals.  The Texas Supreme Court declined to hear the case on May 28, 2010.  Scourfield had a certain timeframe following the Texas Supreme Court’s denial to request reconsideration of that ruling.  Because she did not, the Texas Supreme Court sent the case back to the Dallas Court of Appeals which, in turn, returned the case to the Dallas district court for trial.

“Our fight is not finished, but only beginning,” saidMichelle May O’Neil, Dallas family law attorney representing Vowels.  “We have to return to the district court and show the judge why it is in the best interest of the child that Ms. Vowels have access to the child.”

“I have been waiting for so long just to get someone to listen to why I should be involved in my child’s life,” said Vowels.  “I’m just grateful that, after so long, I will finally be given that chance.”

The trial will be held in front of Judge Tena Callahan, who ruled in October of 2009 that two gay men, legally married in Massachusets in 2006, had the right to seek divorce in a Texas court.  That case remains pending on appeal.

See the original opinion in In Re M.K.S. (pdf version).

See my prior posts Dallas Divorce Lawyer Quoted by Dallas Voice Newspaper and Green Light for Suit for Access to Child by Lesbian Nonparent


Same Sex Couple Divorce and Parenting Issues

On Thursday, June 17, I will be participating as a panelist in the State Bar of Texas Family Law Update:  Same Sex Couple Divorce/Parenting Issues webcast seminar. 

This two-hour webcast is intended to inform the family law practitioner about recent developments in same-sex family law cases. Dallas and Austin have both recently litigated gay divorces; the 5th and 9th Courts of Appeal have recently issued opinions addressing standing for same-sex parents.

  • WHO is most affected by same-sex family law cases?
  • WHAT can practitioners do with cutting-edge lawyering?
  • WHERE will standing end up, with the split of opinions among appellate courts?
  • WHEN is a parent not a parent?
  • WHY can’t couples legally married in other jurisdictions get divorced in Texas?

Advising same-sex couples can have long-term ramifications for the best interests of children, and need to anticipate upcoming changes in the law, both locally and nationally. Join us to see the latest developments from the attorneys on the front lines. 

This seminar is approved by the Texas Bar for continuing legal education with 2 hours credit. The seminar is sponsored by the Sexual Orientation and Gender Identification Issues Section of the State Bar of Texas.

I am very excited to be on this panel and plan to learn more than I teach!  Other speakers on the panel include:

1. Ms. Jennifer R. Cochran, Austin
Attorney at Law

Read Jennifer's Blog Here:  The Zealous Advocate

2. Ms. Karen J. Langsley, Dripping Springs
Attorney at Law

3. Ms. Michelle May O'Neil, Dallas
O'Neil Anderson

4. Mr. Peter Schulte, Dallas
Schulte & Apgar

Mr. Schulte has been in the news a great deal lately, representing one member of the gay couple seeking a divorce in Dallas.  That case remains pending on appeal in the Dallas Court of Appeals.

See my prior posts on that case:

  1. Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional: UPDATE
  2. Dallas Judge Tena Callahan Speaks Publicly For The First Time Since Her Controversial Ruling

Time Magazine has also written on this topic recently, discussing the gay divorce cases pending both in Dallas and in Austin, Can Gay Couples Divorce Where They Can't Marry?

The cost of the webcast seminar is $135. 

Webcast registration is only available online and by using a credit card. Go to TexasBarCLE.com and select 'Webcasts' from the menu. Registrations by mail, fax, or phone will not be accepted.

We encourage early registrations to give you time to verify that your system is webcast-ready. Our technical support lines are usually extremely busy on the day of a webcast, so be please register and test your system a few days ahead of the webcast date.

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

Dallas Judge Tena Callahan Speaks Publicly For The First Time Since Her Controversial Ruling

Judge Tena Callahan made national headlines this month when she ruled that a Dallas gay couple could seek a divorce in Texas to terminate the marriage granted by the State of Massachusets.  See my prior post:  Dallas Judge:  Ban on Gay Marriage and Divorce Unconstitutional

Judge Callahan spoke publicly this week for the first time since her ruling at a meeting of the Dallas Stonewall Democrats.  The Dallas Voice reported on the meeting and her speech last night online Callahan: It's always time to do the right thing by John Wright:

Judge Tena Callahan stood at the front of the room inside Ojeda’s Restaurant in Dallas on Tuesday, Oct. 20, and held up a small, red cloth bag.

Callahan said she has “millions” of bags like it, because they’re frequently given to judges and attorneys at legal seminars. She said she uses them for groceries and leaves them hanging over a chair in her dining room.

But Callahan said it was this particular bag — and the quotation printed on the back — that ultimately helped her muster the courage she needed to recently declare Texas’ marriage amendment unconstitutional.

“I was sitting at my dining room table and I was thinking, I’ve got to make this decision, I’ve got to rip this Band-Aid off and I’ve got to make this decision,” Callahan said, adding that she wasn’t struggling with the constitutional principle behind the ruling, but with the backlash she was sure to face.

“My dad always used to tell me that a billion people can believe in a bad idea, and it’s still a bad idea. And that man taught me to have the courage of my convictions and to do what’s right

— it’s always the right time to do the right thing. And as I’m sitting there and all this is going through my head, I’m looking at the back of this bag, and I went, ‘Oh my God, I just got my answer.’

“‘Let us have faith that right makes might,’” Callahan said, reading from the back of the bag, “and in that faith, let us to the end dare to do our duty as we understand it. — Abraham Lincoln.”

“I do my duty,” Callahan said. “That’s what you elected me to do.”
As Callahan concluded her brief remarks, fellow members of Stonewall Democrats of Dallas gave her a standing ovation, just as they had when she took the microphone.

Judge Callahan also commented on the application of the U.S. Constitution:

“And when I got to reading the Constitution of the United States of America, which Texas is still a part of, I was never more sure of just how much you and I are the very same and how important it is that that constitution protect you, because if it doesn’t protect you, then it doesn’t protect me, and I want it to protect me,” she said.

“It’s not there to protect the majority. In a democracy, majority rules. Who needs the silly constitution when you’re ruling? But when you overreach, when you step out of your bounds, when you apply the same laws differently to people who are just the same, that’s what it’s there for. …

“It is a wonderful, living, breathing document, and it protects us all,” Callahan said.

Callahan said she was only doing her job when she issued the ruling and she credited those in the room with being “smart enough” to help elect her and other Democrats in 2006. She encouraged them to do “the right thing” again in 2010 by supporting Democratic candidates, including several who attended Tuesday’s meeting.

 Hat Tip to Kris for pointing me to this article!

Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional: UPDATE

Dallas 302nd state District Judge Tena Callahan ruled Thursday that the state's bans on same-sex marriage violates the constitutional guarantee to equal protection under the law. She said her court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction."  Her ruling clears the way for two gay men to legally divorce in Texas. 

Judge Tena Callahan investiture

The men legally married in Cambridge, Massachusets, in 2006 and later moved to Dallas. In Janauary 2009, one of the spouses filed for divorce.  The marriage, one of the spouses said, was not entered into lightly, and after 11 years together, the breakup is painful.

A voter-approved state constitutional amendment and the Texas Family Code prohibit same-sex marriages or civil unions.  The approval of the Texas Marriage Amendment by voters in Nov. 2005 specified the definition of marriage in the Texas Constitution as the union of one man and one woman. It protects the longstanding social practice of recognizing only the union of a man and a woman as a marriage, and reinforced the Texas Defense of Marriage Act of 2003 prohibiting any political entity in the state from recognizing the union of two people of the same gender.

The Texas attorney general had intervened in the two men’s divorce case, arguing that since a gay marriage isn’t recognized in Texas, a Texas court can’t dissolve one through divorce.  Judge Callahan denied the AG's intervention, which, of course, the AG promises to appeal.  The AG said, "In the State of Texas, marriage is – and has always been – a union between one man and one woman. To prevent other states from imposing their values on this state, Texas voters overwhelmingly approved a Constitutional amendment specifically defining marriage as a union of one man and one woman," he said in a written statement. "Because the parties' Massachusetts-issued arrangement is not a marriage under Texas law, they are asking a Texas court to recognize – and dissolve – something that does not legally exist."

The Dallas lawyer representing the spouse filing for the divorce said he will argue that the men have that right under Article IV, Section 1 of the U.S. Constitution. The so-called Full Faith and Credit Clause provides, in part, that states recognize contracts from other states – that the marriage bond, he said, is universal.  He also argued that the ruling violates the guarantee for equal protection under the law.

Expect an immediate and hasty appeal to the Dallas court of appeals and likely the Texas Supreme Court on this one.  I'm sure the AG will file a mandamus action in the court of appeals to prohibit the divorce from proceeding.  The Dallas court of appeals will likely stay the divorce proceedings while the mandamus proceeds.  Then, regardless of the result of the case, the losing party will likely seek mandamus in the Texas Supreme Court, where the divorce proceeding will continue to be stayed.  It is not out of the question for the case to be filed with the U.S. Supreme Court for determination. 

Judge Tena Callahan is a Democrat elected in the 2006 Democrat sweep of the Dallas County courthouse.  Prior to election to the 302nd bench, Judge Callahan practiced law as a family law attorney in Dallas County for 15 years.  Judge Callahan received her undergraduate degree from the University of Texas and her law degree from St. Mary's School of Law.  In her 2006 campaign, she was endorsed as Qualified by the Committee for a Qualified Judiciary and the Dallas Morning News editorial board.  The Dallas Bar Association's Chris Robison with the DBA Publications Committee profiled Judge Callahan.

On the other hand, the Dallas Court of Appeals is considered to be one of the most conservative courts in the State.  Dominated by nine republican justices who are elected over a five county region consisting not only of Democrat-leaning Dallas County, but also uber-conservative Collin County and Grayson, Hunt, Rockwall and Kaufman counties.  Likewise, the Texas Supreme Court is made up of justices mostly appointed by either Governor Perry or Bush and it is largely considered to be one of the most conservative groups of justices on the Court ever.

Although many will consider this ruling to be a win for the GLBT sector, based on the level of conservatism of the justices in line to hear this case, it is extremely doubtful that this ruling will last very long.  No doubt, in the meantime, it will provide a national spotlight for Dallas County and Judge Callahan.

Hat tip to Roy Appleton of the Dallas Morning News for the article Dallas judge paves way for gay couple to get divorce October 1, 2009.  See also Roy Appleton's article Dallas same-sex divorce case a first for Texas on January 23, 2009.


This case has received expected national media attention.  This blog was quoted in the Gay Couples Law Blog (shout out to Gideon Alper!)

Also, NBC5 in Dallas has run a story on the issue, CBS11 in Dallas has interviewed Judge Callahan where she reiterates that the judicial ethics canons prevent her from discussing the case, the Wall Street Journal blog discussed the case, as did USA Today, and the Associated Press ran the story.

Not surprisingly, this issue is hot and being talked about.  I can tell you that Judge Callahan is a thoughtful, wise judge who (obviously!) has no problem doing what she thinks is right, without regard to politics or media coverage or anything else.  I've practiced in front of her since she became a judge.  I've won some and lost some in front of her.  But, I've never doubted her conviction for calling "balls and strikes" as she sees them!


Resources for LGBT parents

A client referred me to the website www.colage.org as a resource for LGBT parents.  COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. I found the website very insightful and wanted to share it with our readers.  Check out this custody resource sheet called Protecting Families: Standards for Child Custody in Same-Sex Relationships.  Also, check out this suggested reading list for LGBT parents.  Issues involving same-sex couples, and especially same-sex couples with children, are increasing in the Dallas, Texas area.  These can be invaluable to anyone with questions about their rights. 

Also see this article in the Dallas Voice about one of my cases: Lesbian Moms in Custody fight.  This case is currently pending in the Dallas Court of Appeals.  Hopefully when it is decided, it will provide additional guidance as to the rights of same-sex partners who decide to have a child.

GLBT Custody or Possession of a Nonbiological Child

A client asks, I’ve maintained a relationship with my former partner’s child after our relationship ended, but I’m afraid that she’s going to cut me off. Is there anyway I can sue to keep the relationship I have with the child even though I’m not the biological parent?

I have four cases in my office right now pending in Dallas County with this exact issue. The Texas Family Code allows a lawsuit to be filed by a person who has had “actual care, control, and possession” of a child for at least 6 months ending not less than 90 days prior to the lawsuit being filed. There is much discussion going on in the court system right now about what constitutes “actual care, control and possession”. It is clear that “possession” does not mean uninterrupted periods, and does include periodic, alternating periods of possession. The current state of the law is unclear as to the meaning of “control” and there is much debate among judges as to what it means.

The law requires 6 months of possession, but it is unclear whether it means 6 months between the first period of “actual care, control and possession” and the last period, or whether the total of the periods of possession by the non-parent must aggregate (add up) to a total of 180 days. Regardless, the last possession period must not be less than 90-days prior to the day the lawsuit is filed. This means that a person who wants to solidify the relationship through a court order must not delay in filing suit.

I’ve had several clients come in with these problems, and each one delayed in seeking legal help. If you have a relationship with the child of a former partner, please do not delay in seeking advice from a lawyer about your situation. Consider confirming your relationship in a court order while the relationship with the other partner is good. If you have any questions about your status, please schedule a private, confidential consultation today.