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Same-Sex Family Law Challenges In Texas

Karri Bertrand Attorney, O'Neil Wysocki Family Law SUMMER 2019 ISSUE FAMILY LAW MATTERS

For same-sex families living in Texas, it is difficult to know and understand exactly what laws apply to you and your family and how those laws impact your family. Even though a 2015 Supreme Court ruling gave all LGBTQ+ Americans the right to marry, many states, like Texas, have been slow to update their state laws to accommodate these new “legal” family units. Karri Bertrand, an associate attorney at O’Neil Wysocki Family Law Firm, explains below how the law has been developing across the country, and what that could mean for you and your family here in Texas.

Due to the legal challenges and uncertainties that same-sex couples face, do you recommend mediation prior to litigation? Mediation is always preferable, but especially in same-sex cases. When couples mediate, they remain in control of the outcome. Litigation places the outcome of the parties’ case in the hands of a judge who may not fully comprehend or appreciate the unique challenges of the parties’ situation. Further, judges all have their own personal biases that may come into play.

Do you recommend other forms of alternative dispute resolution, and have they been effective? Mediation is probably the most effective form of alternative dispute resolution. If a case appears mostly uncontested at the outset, the attorneys can reach an agreement through the informal settlement process. Collaborative law is also an option which eliminates litigation completely from the process. The parties collaborate with their attorneys, financial advisors, mental health, and other professionals. Some attorneys find that the collaborative law process can be frustrating because there is no “rush to court” option if a party is intentionally delaying the process. In my practice, however, I generally prefer mediation over any other alternative dispute resolution options.

What parentage challenges do same-sex couples face after a breakup? For most couples with children, a breakup in their relationship does not equate to losing their children. However, when it comes to same-sex couples, particularly those who never married, there are legal barriers that prevent them from asserting their rights as parents. In a recent case out of the Fourth Court of Appeals in San Antonio, a same-sex couple conceived a child through artificial insemination.¹ The parties separated a year later and the biological mom of the child moved to Texas, subsequently denying her former partner (the child’s non-biological mom) any access to or possession of the child.² The non-biological mom filed a lawsuit seeking to establish legal standing to assert her parentage through common law marriage or joint managing conservatorship.³ In the end, the non-biological mom’s case was dismissed because she lacked standing, which is a legal hurdle overcome only by satisfying specific statutory requirements.⁴

The non-biological mom’s claim as the intended parent was dismissed because the statute only applies to men claiming to be fathers.⁵ Her claim as a party with actual care, possession, and control for at least six months was dismissed because the applicable period of time had ended more than 90 days prior to filing her lawsuit.⁶

Is there another path to parentage for non-biological parents in same-sex couples? Second parent adoption, which is discussed further below, is one option. Also, in the case referenced above, had the non-biological mom’s situation been a little different, she may have had stronger footing. For instance, another provision of the Texas Family Code provides that a man is presumed to be the parent of a child if he lives with the child for two years and represents to others that he is the father of the child.⁷ Texas Family Code Section 160.106 says this provision of Chapter 160 also applies to a determination of maternity.⁸ Therefore, had the non-biological mom lived with the child for two years instead of one, she may have had a stronger claim.

While the Uniform Parentage Act (“UPA”) is arguably intended to be gender neutral, Texas courts have not consistently acknowledged this concept, nor has the Texas legislature adopted gender-neutral verbiage.⁹ Unmarried individuals in same-sex relationships with children who are contemplating a breakup should seek legal counsel beforehand so they can fully explore and understand all of the potential hurdles they may face. Married individuals in same-sex relationships may also face post-breakup challenges depending on the date of their marriage and whether they are listed as a parent on the child’s birth certificate. In either case, time is of the essence.

Can same-sex couples in Texas adopt? Second parent adoptions by consent (meaning that the legal parent in a same-sex couple consents to the other parent adopting the child) is the best way for same-sex couples to ensure that the rights of both parties are protected. However, same-sex couples still face challenges when it comes to adoption.

Catholic Charities of Fort Worth recently denied a lesbian couple the ability to adopt a refugee child.¹⁰ Fatma Marouf and Bryn Esplin both teach at Texas A&M University; Fatma is a Professor of Law and Director of Texas A&M’s Immigrant Rights Clinic, and Bryn is an Assistant Professor of Bioethics at Texas A&M College of Medicine.¹¹ The couple sought to adopt or foster one of the 300,000 homeless or unaccompanied refugee children worldwide, and they tried to set up an interview with Catholic Charities of Fort Worth, a federally-funded agency specializing in placing refugee children.¹² “Refugee children have been through enough trauma to last a lifetime,” says Marouf. “They need love, stability, and support, which Bryn and I have in abundance.”¹³ During the interview, an employee informed them that the agency only adopts to families who “mirror the Holy Family,” and because they were a same-sex couple, they would be disqualified.¹⁴ Lambda Legal filed suit on behalf of the couple, claiming that their equal protection rights under the Fifth Amendment of the Constitution had been violated.¹⁵ As stated in their complaint, “[t]here is no valid basis for the government to prefer different-sex couples over same-sex couples when considering or approving would-be foster or adoptive parents.”¹⁶

The U.S. Department of Health and Human Services (HHS) funds the program that turned away Marouf and Esplin exclusively with federal taxpayer money through its Office of Refugee Resettlement (ORR).¹⁷ Specifically, HHS funded the U.S. Conference of Catholic Bishops (USCCB) to perform federal child welfare services through its affiliates even though USCCB made it clear that it would use the funds to deny such services to members of the public based on USCCB’s religious beliefs.¹⁸ Further, Texas House Bill 3859 allows state-funded child welfare agencies to discriminate against prospective parents on the basis of faith.¹⁹ The legislation prevents the state from taking “adverse action” against any service provider that acts in accordance with its “sincerely held religious beliefs.”²⁰ According to Lambda Legal Staff Attorney Jamie Gliksberg, “[T]he federal government was on notice when it funded USCCB that this organization refuses to provide services to same-sex spouses at taxpayers’ expense.”²¹ Gliksberg adds, “HHS knew it and funded USCCB anyway.”²²There should be only one criterion for placing foster children – what is in the best interests of the child.²³ Placing children with stable, loving homes such as Fatma and Bryn’s should be the goal, but instead HHS authorized USCCB to use discriminatory criteria bearing no relationship to child welfare, all at the cost of children in federal care.²⁴

By contrast, there are other adoption agencies dedicated to working with LGBTQ families. Click here to view a list of agencies that have achieved all of the All Children - All Families Benchmarks of LGBTQ Cultural Competency. These agencies are committed to implementing policies and practices that welcome, affirm, and support LGBTQ youth and families.

Can both parents in a same-sex couple be on the child’s birth certificate? In Texas, the Department of State Health Services Vital Statistics Unit has upgraded its system to allow for the recording of same gender parents on birth records.²⁵ But a recent case out of Arizona, however, illustrates that same-sex couples across the country still face challenges pertaining to some basic rights related to parentage, such as being listed on their child’s birth certificate.²⁶ In that case, the Arizona Supreme Court stated “[i]t would be inconsistent with [the United States Supreme Court’s recognition of same-sex marriage] to conclude that same-sex couples can legally marry but states can deny them the same benefits of marriage afforded opposite-sex couples.”²⁷The United States Supreme Court did not review this case, meaning the direct effect of this case only impacts families in Arizona.

What is the effect of this case on Texas jurisprudence? Arizona interpreted the United States Supreme Court’s decision in Obergefell v. Hodges (granting marriage rights to same-sex couples) to include the subsequent benefits of marriage, such as parentage.²⁸ This decision is significant for the parties to the case, but the impact on other cases is still unclear. Since the 2015 U.S. Supreme Court decision in Obergefell, many cases have recognized that married same-sex parents must be treated equally as married opposite-sex parents and that they are entitled to the same “constellation of benefits” as other heterosexual marriages.²⁹ In June 2017, the U.S. Supreme Court held in Pavan v. Smith that Obergefell requires states to treat all married couples equally.³⁰ The Arizona Supreme Court’s decision in McLaughlin is consistent with settled law and should be instructive to other states considering this issue. But until a similar case is filed in a Texas court, the full impact of these cases on Texas families remains unclear. If you have questions about the law’s effect on your family, you should always contact an attorney who has experience in family law and an understanding of the unique situations faced by same-sex families.

Sources ¹ In re N.M.B., No. 04-18-00111-CV, 2018 WL 6516120, at *2 (Tex. App.—San Antonio Dec. 12, 2018, pet. filed) (mem. op.).

² Id. ³ Id. Id. Id. Id. Tex. Fam. Code § 160.204(a)(5). Id. § 160.106. See generally Id. § 160. ¹⁰ Lorelei Laird, Same-sex Couple Sues Federally Funded Refugee Adoption Agency for Discrimination, ABA Journal (Feb. 23, 2018, 2:25 PM), ¹¹ Laird, supra. ¹² Laird, supra. ¹³ Lambda Legal Sues HHS after Same-Sex Couple Blocked from Serving as Foster Parents, Lambda Legal (Feb. 20, 2018), ¹⁴ Lambda Legal, supra. ¹⁵ Lambda Legal, supra. ¹⁶ Complaint for Declaratory and Injunctive Relief and Monetary Damages, Lamda Legal (Feb. 20, 2018), ¹⁷ Laird, supra. ¹⁸ Laird, supra. ¹⁹ Tex. Hum. Res. Code § 45.005(a). ²⁰ Id. ²¹ Lambda Legal, supra. ²² Lambda Legal, supra. ²³ Tex. Fam. Code § 153.002. ²⁴ Lambda Legal, supra. ²⁵ Texas Health and Human Services, (last updated April 20, 2018). ²⁶ See McLaughlin v. Jones in & for Cty. of Pima, 401 P.3d 492, 494 (2017), cert. denied sub nom. McLaughlin v. McLaughlin, 138 S. Ct. 1165 (2018). ²⁷ McLaughlin, 401 P.3d at 497; See also Obergefell v. Hodges, 135 S. Ct. 2584 (2015). ²⁸ Id. ²⁹ Pavan v. Smith, 137 S. Ct. 2075, 2077 (2017). ³⁰ Id. at 2078.



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