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

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

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Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

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A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.