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
