Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 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 302^nd 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

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link