LGBT Webinar Part 2: Challenges of Non-biological Parent Standing and Custody

Michelle O’Neil:


Welcome back to the O’Neil Wysocki LGBT, Texas family law webinar. This section we are going to talk about the challenges to non-biological parents standing in custody. This is an issue that really transcends the marriage issue in the divorce issue because it doesn't really rely on people being married. It's basically when people are together and there's children involved. So, let's talk about the definition of a parent. A biological parent is obviously a person who through biology is related to a child. So is either the donor of the sperm or the donor of the egg biologically related to the child. Obviously, a parent is also somebody who adopts a child. Then we have some issues regarding surrogacy that are coming up and arising more and more where a person acts as a surrogate for a baby and Karris the baby. so there's some questions in the law about what paternity those women, I guess the woman would be the one carrying the baby would have. And then we have some sperm donor issues that are arising from either formal or informal sperm donors that as to their paternity, their relationship to the child. And then later in the presentation we're gonna talk about the non-parents, so people who are not legally under one of those definitions of parent, but who emotionally feel like they're a parent and have been around the child and involved as if they're a parent. And what rights to the child that they may or may not have going forward. I'm joined today, my name is Michelle O'Neil with O'Neil Wysocki. I'm joined today by Karri Bertrand and Nick Rodriguez, both attorneys in our firm and they're gonna help me present this topic to you guys in this webinar. So let's just jump on in here. There was a recent case about a donor as a parent, Nick, and so I think that's In re P. S. We were talking about before we went on camera that it's really hard to talk about these cases because the courts of appeals have a policy that if a child is involved in the case that the case goes by initials to protect the child's identity. So all these cases that we're talking about are all initials, so they're somewhat hard to kind of keep straight, but we'll post sites in the comments as we're going along so that you can follow and read the cases if you want to yourself. Alright. So talk to me about In re P. S., tell me what happened in that case.

Nick Rodriguez:


So we actually wrote about this in our blog, gay parenting in Dallas.

Michelle O’Neil:


and we will post a link in the comments to the blog posts.

Nick Rodriguez:


Shameless plug, so in this case, In re P.S. a woman asked her friend to be a sperm donor. They’d known each other for several years and so she requested to obtain his sperm. The woman actually ended up getting the sperm directly from her friend, the known sperm donor. There was actually an acknowledgement of paternity that they both filed and then bio mom ended up trying to resend that acknowledgement of paternity once a child was conceived and born. So the way it ended up was, mom ended up having a relationship with a woman later soon after, that relationship, she tried to have a second parent adoption with her now partner. And so when she tried to attempted to do that the father at the time was claiming paternity to the child. And so the court rested its decision on two statutory provisions found in the family code. So they're found in section 160.702, which states that a donor in Texas is not the parent of a child conceived by means of assisted reproduction. The court went a step further and looked at the definition of what a donor actually is. And so that by definition, a donor in Texas, to be considered a donor in Texas an individual had to provide sperm to a licensed physician to be used for assisted reproduction. And so because the mother received the sperm initially directly and she artificially inseminated herself and it wasn't performed by a licensed physician, the father was deemed to have parental rights to the child and therefore her partner could not have a second parent adoption.

Michelle O’Neil:


Okay. So the lessons from In re P.S. and based on the statute, what's the statutory reference again for those who missed it?

Nick Rodriguez:


So section 160.702 defines who can be a donor and then 160.1026 defines a donor and then a one 160.702 states if you are a donor, what your parental rights are.

Michelle O’Neil:


All right. So a donor then under Texas law and under the P.S. case, what court of appeals is P.S. out of? Do we know?

Nick Rodriguez:

I believe the San Antonio courts.

Michelle O’Neil:

All right. So a donor under Texas law then is somebody that provides sperm through a licensed clinic or a doctor. So if you just get some sperm from your friend next door, that is not technically a donor under Texas law. So if we were advising people that wanted to get pregnant through a donor, I guess we would need to advise them that if they don't intend for the donor to be a parent, they need to go through a facility, go through a doctor.

Karri Bertrand:

Have a donor agreement.

Michelle O’Neil:

Well, it sounds like even under P.S. I mean, even if you had a donor, I guess P.S. doesn't really address the concept that if they had an informal donation and a donor agreement that provided he wasn't a father. I mean, that it doesn't really address whether or not that would be a donor under the Texas law or not.

Karri Bertrand:

Bottom line, don't do this at home. No turkey basters.

Michelle O’Neil:

yeah, so don't try this at home.

Nick Rodriguez:

This has pretty recent. 2016 was that too long ago that the court ruled this.

Michelle O’Neil:

So a donor then is a person who donates through a facility as opposed to an informal relationship. Does it matter Karri, let's set up an example or a scenario to talk about the next group of cases. So you have a couple, same sex couple, let's make them a lesbian couple because there's some differences in female biology as far as having children. So lesbian couple is together and one of the women decides to get pregnant, presumably through a donor and we'll assume that they're going through a facility for this presumption, so we don't have these other paternity issues. And so let's talk about the child that is born to one of the women and who are the parents of that child based on their relationship. So if they're married, well, let's start with unmarried. That's an easier question, right? If the lesbian couple is not married and one of the women gives birth to a child from her body during the relationship, what is the person in the couple?

Karri Bertrand:

We're not married, right? I got lost.

Michelle O’Neil:

Let's say not married first, sorry.

Karri Bertrand:

Not married, only bio mom is going to be a parent if they're not married.

Michelle O’Neil:

So the other person in the relationship is not legally related to the child?

Karri Bertrand:

Correct.

Michelle O’Neil:

If they are married at the time that the bio mom gives birth to the child, what does that do here?

Karri Bertrand:


It depends. There seems to be splits in the courts of appeal. Some are saying that they need to still adopt. So the presumption of maternity of a child born during a marriage of two females is not being uniformly applied.

Michelle O’Neil:

So let's talk about just for reference purposes, if it were a heterosexual couple, obviously a child born to a heterosexual couple during a marriage the father is presumed to be the parent of the child. That's the presumption of paternity that's found in the Texas family code, right? So what we're talking about then is what presumptions of parentage apply whenever you have the same sex couple. So you have a same sex lesbian couple, one spouse gives actual birth to a child during the marriage from a donor and the other spouse, the question is, are they or are they not a presumed parent? Obviously, she wouldn't be a biological parent, but would she be a presumed parent under the law? So Karri, help us walk through what the statutes are that we might want to look at in analyzing this question.

Karri Bertrand:

So under the family code section 160.204, which is the presumption of paternity, a man is presumed to be the father of the child if he's married to the mother of the child and the child is born during the marriage, he's married to the mother of the child and the child is born before the 301st day after the date of the marriage is terminated by death, annulment, declaration or invalidity of divorce. I don't think Michelle really wants me to read the whole statute to y’all…

Michelle O’Neil:

Read the statute on your own 160.204.

Karri Bertrand:

You can go through the various prongs of the statute. Basically though, if you flip over to the page before that, section 160.106, before we even get to the presumption of paternity, it states that revisions of this chapter relating to the determination of paternity apply to determination of maternity.

Michelle O’Neil:

So the logic then is combining one 160.106 and 160.204, there's an argument to be had that the presumption of paternity that applies to a man who is married to the mother at the time the child is born, would also apply to a woman who is married to the mother at the time the child is born.

Karri Bertrand:

Correct.

Michelle O’Neil:

And then when you read on down in 204, there's also some kind of other interesting provisions of presumption of paternity, like number five says, during the first two years of the child's life, he continuously resided in the household in which the child resided and he represented to others that the child was his own. And so if a man can do that for the first two years of the child's life, basically represent himself to be the father and therefore be presumed to be the parent, then 160.106 would imply that a woman could also do that. Have there been any cases that have talked about the application of these statutes at this point?



Karri Bertrand:


One of the more recent ones that we also blogged about, that we'll post the link to, was one out of San Antonio called In re M.B. Now the facts in this one are a little bit different because the couple broke up before the child was born and the biological mother moved to Texas and after she moved to Texas and the child was born, she basically attempted to cut off the other parent or her former partners any rights to that child. Non-bio mom filed a lawsuit here in Texas trying to establish a standing and she tried to establish standing under a couple of different precision provisions of the statute, including the presumption of maternity. And this court said no, this court and In re A.E. said the presumption of paternity does not apply to women and it refused to extend the constellation of rights under that presumption to lesbian couples and basically said Obergefell acknowledges that state derived benefits of marriage that a state may confer upon married couples, including adoption rights and rights of child custody support and visitation rules. None of these state derive benefits of marriage are fundamental rights. And I think it's still being considered for review at the Supreme Court of Texas.

Michelle O’Neil:


So you're talking about A.E., you started talking about an N.M.B., I think.

Karri Bertrand:

Oh, I'm sorry. I switched over, I’m sorry!

Michelle O’Neil:

I think we've flipped cases. So let's talk about N.M.B. for just a minute and then we'll switch over and talk in detail about A.E. So in M.B., what do we know what court it was out of?

Karri Bertrand:

San Antonio.

Michelle O’Neil:

So the same court that P.S. was out of and so what was in N.M.B. about?

Karri Bertrand:

The child was born before and then they split up, actually it was born after they'd split up and the mom moved here and the non-bio mom attempted to get standing to get rights, custody rights to the child and was denied standing.

Michelle O’Neil:


All right and so what did the San Antonio court in the N.M.B. say?

Karri Bertrand:


They did not apply the presumption of paternity because it doesn't apply to mothers and they’re looking at the statutory construction under the uniform parenting act and saying that this is only meant to be for men and fathers.

Michelle O’Neil:


Okay. So then let's switch over to A.E. because that's so important to our discussion about standing and non-bio bio parent rights here. So talk to me about A.E. what court is a A.E. out of? Do we know?

Karri Bertrand:


yes, we should know.



Michelle O’Neil:


Well, we'll look that up and put it in.

Karri Bertrand:

Beaumont.


Michelle O’Neil:

Okay. I was thinking it was by Beaumont, but I wasn't gonna say it cause I might've been wrong.

Karri Bertrand:

Jump in Nick, help me out!

Michelle O’Neil:

All right, so A.E. comes out of the Beaumont Court of Appeals and so tell us about A.E.



Karri Bertrand:


So as I kind of jumped ahead and started telling you it's a similar situation where you have a married lesbian couple separating prior to the birth of the child and in this case same kind of issue. The parent tried to get standing to have custody rights and the court refused to apply the presumption of maternity to the presumption or the maternity to the paternity statute. And I don't know really, I look at the family code and I see this is what it says. The courts are looking at it and say, no that's not true, it's only men. So I don't know how going forward the Supreme Court will look at this because it is being considered for review. And I know there's a lot of agencies looking at this case nationally to see kind of going forward what Texas does with this, because I think this is something that needs to be fixed.

Michelle O’Neil:


So A.E.s currently pending before the Texas Supreme Court right now.

Karri Bertrand:


They denied review initially but….



Michelle O’Neil:


Well, so they denied review and then they have, I think there's been a motion to reconsider filed, so that's still pending at this point. So let's walk through standing. So if there's a person who is not legally a parent to a child and they have been in a relationship with the parent of the child. And really this applies actually to some heterosexual couples as well as same sex couples, right? It’s not necessarily just a gay rights issue, but if there's a person who has been in the home and part of a relationship with a parent and that relationship is breaking up, then is there ever a time where such a person would have a right to sue, standing to sue for rights to the child?

Karri Bertrand:

Yes.

Michelle O’Neil:

So under 102.003, that's where we talk about standing. So Nick, tell me the difference between standing and winning your case.



Nick Rodriguez:


Standing and winning your case. Well standing is obviously a procedural issue that needs to be resolved first before you can even have a case, right? So if you don't meet the requirements of standing, there's no case to be had.



Michelle O’Neil:


I like to think of it as standing is the right to walk in the door to the courtroom. It's the foot in the door, that it doesn't mean that you're going to win your case. It doesn't mean you even have a case on the merits. It's just the right to be in the courtroom. And I think that's a real important distinction in these cases. And we'll talk about that in detail here, that just because you have standing to sue doesn't mean you actually have the merits of a lawsuit to prevail. And I can't stress to you enough how important that is in evaluating these cases like this for a non-biological parent suing. All right, so let's talk about it 102.003, subsection A9 says that an original suit may be filed at any time and the nine says by a person other than a foster parent who has had actual care, control, and possession of the child for at least six months, ending not more than 90 days proceeding the date of filing of the petition. So the keywords there then our actual care, control, and possession of the child for at least six months, not ending in more than 90 days. So the first takeaway to me from just reading the statute is that in advising clients, we have to advise them to act fast. In other words, if you think that the relationship is breaking up and you might want to sue for some continuing relationship with a child that is not biologically or adoptive your own, then you need to act fast because you have a short little window of time to seek relief under this statute. So you have to have had actual care, control, and possession of the child for at least six months ending, not more than 90 days before the filing of the petition. Lot of times what we see is when these people break up, the biological parent will withhold the child from the other person almost immediately. There are other situations where the biological parent will maybe allow some access for a small period of time going forward and then revoke the access. And those are the cases where, those are the situations where this can actually be quite problematic because if you break up and you separate and you still have some access for a while going forward, but the parent, the biological parent is in control, there's that word control, of what that access is and then you know, six months down the road, the parent revokes that access, then that's kind of where you get into some really murky waters where you may have waited too long to seek relief.



Karri Bertrand:


And that happened in In re M.N.B., the court looked at the issue of equitable tolling because one of the things that the non-bio mom claimed is that they were trying to work out an agreement, they were going to, she's letting her see the kid and then not letting her and the court's like, sorry, you no longer had actual care, control, and possession.


Michelle O’Neil:

So I was fortunate to be involved in one of the very first cases on the question of the application of this standing to sue under actual care, control, and possession to a non-biological lesbian mom, emotional mom. And that case is In re M.K.S.V. and that was actually the case of first impression when it came out many years ago that held that a non-biological lesbian mother could qualify under this statute to have standing to sue for a conservatorship or a custody of a child. So in that case they had broken up and it actually deals with that equitable tolling question as well. So in M.K.S.V. they had actually broken up and operated by a written agreement under what we would family lawyers would call basically a standard possession schedule. They had a whole schedule it very much mirrored the statutory every other weekend, 30 days in the summer, split up the holidays, kind of schedule. And they operated by that for quite a long time. And then all of a sudden the biological mother changed her mind and revoked her agreement and started denying possession. And so thankfully my client filed within that 90 day window of not having seen the child according to their agreement. So in M.K.S.V. they had the equitable tolling question as well as the standing, the ultimate standing question. So in M.K.S.V. the Dallas Court of Appeals held that my client had had actual care, control, and possession at the acquiescence of the biological parent sufficient to meet the standing statute.

Unfortunately, the rest of the story in M.K.S.V. is not so happy because it illustrates this problem of getting standing to sue is just the very first getting the foot in the door versus actually prevailing. So the rest of the story is that the Troxel, Troxel is a U.S. Supreme Court case that ruled that a parent has a constitutional right to parent without intervention from the government or anybody else, unless that parent is shown to be unfit. So when we're talking about this standing to sue issue, the question isn't just a question of standing. Standings is just the initial problem but the question then becomes, do you have enough to actually win your case? And in M.K.S.V. both of these ladies were good people and for all intents and purposes good parents. And so we did not have enough to meet the Troxel standard. And so we ended up actually non suiting M.K.S.V. because we did not feel that we could meet the Troxel standard. So that's quite a problem. There's been a lot of litigation over the definition of the words care, control and possession.


So possession is a fairly well defined term. I mean it's a term that kind of connotates, it was a term they talked about in M.K.S.V., it was decided on the term possession and they found that the agreement between the parties that was something similar to a standard possession schedule was along the lines of possession as it's termed in the standing statute. The words actual care is also somewhat obvious. Are you caring for the child independently? Is the child staying at your house, sleeping, whatever? Are you taking the child to the doctor? Are you taking the child to school? Are you doing homework? Those are the terms that care would connotate but getting back to A.E. in the term control, right? The term control has been quite litigated. So where are we at in this control issue, Karri?

Karri Bertrand:


As far as which child is the parent living with or?

Michelle O’Neil:

well, in terms of standing and the control understanding. So there's been some recent cases that have that have defined control and have allowed control to include kind of the idea that a non-biological parent when they have the child, even if the biological parent is letting them have the child that that is a term of control. So the Texas Supreme Court decided a case recently on this control issue and actually held it to be a little bit broader than what some of the courts of appeals have held it to be. So there was a split in the courts of appeals. Some of the courts of appeals were defining the word control very narrowly and some of them were defining the word control a little more broadly.


And so the last summer, the Supreme Court, the Texas Supreme Court came out and said basically resolve this dispute to say we're defining it in the more broad sense of the term instead of the more narrow sense, which actually gives these a non-biological parents a little bit more of a foot in the door under the definition of the word control.

Karri Bertrand:

The In re H.N.S. case I think, where there was no voluntary relinquishment, I think of one parent living with a grandparent or something.

Michelle O’Neil:

And that's the question is whether they're allowing this access, whether that's allowing control or whether that's actually the biological parent exercising control. So let's talk about Troxel for just a minute, we're cutting close on time here. So Troxel basically is the U.S. Supreme Court case that kind of predates a lot of what's in our statutory scheme that says that a fit parent has a constitutional right to parent without intervention. So that raises the standard for intervention, whether it's child protective services, whether it's a non-biological parent, grandparent, boyfriend, girlfriend, step parent or anybody else for that matter to intervene in a suit or to file suit over custody of a child. So there's actually this really high burden that you have to prove in order to prevail on the merits of a custody case. And it basically equites to, there really is no lawsuit for sub parent rights. In other words, there's no lawsuit for access. There's no lawsuit for a standard possession schedule. You have to either sue for primary custody and allege that the biological parent is unfit or you can't win, right. And that's really hard. What do you advise clients whenever you're talking to clients about that?

Karri Bertrand:


I mean that's frustrating because they're not necessarily looking to destroy the other parent. They're not necessarily looking to say the other parent is unfit. They just want to be a part of their child's life. And so you’re kind of stuck in this place where you're walking away, like I think that's what happened with your client and M.K.S.V., you're having to walk away from years and years litigation and maybe never being able to prove the standard, that high of burden or going through constant mudslinging litigation.

Michelle O’Neil:


We see it more in grandparent cases. We see more of the grandparents intervening because maybe a parent or both parents withdraw access for some family feud or whatever. You see it more in grandparent cases really is where we see the litigation on this issue coming about. And there is a special statute for grandparent access, but it even still carries this high burden of proving some reason that the parents can't make decisions about their own children. So what do you advise a client, a person who comes in, let's say that for some reason they actually came in early in the process. They're still in the relationship. Maybe the relationship is rocky, but they know they're not legally apparent. What do you advise that person to do first and foremost?

Karri Bertrand:


Preserve that right immediately. I think you get your foot in the door and preserve the standing issue. And then I think if you can't meet that high burden, which most of these many of cases won't, I think you try to get to mediation, you try to reach an agreement to where…

Michelle O’Neil:

well, and I would actually say adoption. Like if they're still together and there's still an opportunity to keep the relationship intact with the biological parent, what I would say is try to reconcile that relationship and push for adoption as a part of that reconciliation, so that you are legally a parent. So for me, like the first thing that I talk to people about whenever they're in that situation is adoption. And I wish, and hopefully our presentation today will kind of help some people who are maybe in the beginnings of relationship and maybe looking at having children in a same sex relationship and help them to make those decisions early on to do an adoption. With lesbian couples, like we said, where one parent is actually giving birth, then you have to do the other parent's adoption to make sure that that's as safe as we can get it. With men, it's actually a little bit different because obviously a man doesn't give birth. So usually those are surrogate women that are giving birth for the man or adoption.

Nick Rodriguez:

And it's extremely expensive also.

Michelle O’Neil:

Right, so like if two gay guys were adopting a child, then it would be fairly common for both of them to adopt now because they're allowed to, right? But there have been times in the past where they weren't both allowed to adopt.

Nick Rodriguez:


Well I believe Texas doesn't, I think Texas allows a single gay man to petition for adoption. I think there is case law that says a married couple, same sex couple can petition for adopted trial. So I don't know if Texas explicitly states that they can both petition to adopt.

Michelle O’Neil:


Well, I think under Obergefell, I think if they're married they do get to do that. We're also finding that where, like with a lesbian couple, where a one woman gives birth to a child and is married to her partner. Actually the Bureau of Vital Statistics is allowing them to file the birth certificate with the married partners name as the other parent. Now, the problem with that is that I think it's still not a presumption as we've talked about under the code, even if it is under the statute. So we're still recommending some court acknowledgement of that parentage of the non-biological parent, even if the Bureau of Vital Statistics is allowing them to be listed on the birth certificate. So either a declaratory judgment action or at adoption of some sort that actually solidifies that parental relationship even though they're on the birth certificate. And so if do you have a client who's coming in with, we've broken up, I want to try to preserve my relationship. Like you said, settlement is the best way because then you have that court order giving as if it's parental rights or non-parental rights to the child by court order and that actually lets them maintain those rights going forward. Right? In other words, it can't be taken away. And so if they are named a conservator, then they can be a conservator and they can sue to modify those rights in the future if something changes and get more access, say for example. So settlement, even if it's a less than ideal settlement is the best way to go just to get the foot in the door and maintain the relationship. All right, I think we have reached the end of our session two, so we're going to take a break here and we'll come back in a few minutes and go to our session three, which is addressing prejudice against gay and lesbian issues in courts. All right. We'll be back in a minute.

Michelle O’Neil:

Keep in mind that this is a webinar that's aimed at attorneys. This is for continuing legal education. If you're out there watching this, this webinar and you're not an attorney, we welcome you to watch it. But remember that we are not giving you any specific legal advice. We cannot comment on any specific case or situation without knowing all the facts. So if you need legal advice, this webinar is not a substitute for legal advice. Please, please seek the advice of a lawyer as to your specific situation and get specific advice to that. Because if you rely on just what we're talking about here, we're being general, we're talking about general legal principles that may not actually apply to your situation. This is for continuing legal education only and we cannot create an attorney client relationship just through the video camera. Okay. Thanks.