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 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

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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

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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.

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