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.

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.