Nancy Polikoff

Texas rebuffs nonbio mom in spite of previous court order with bio mom's consent

Filed By Nancy Polikoff | May 14, 2010 4:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: Charlena Smith, court ruling, Lesbian mothers, nonbiological mom, Renee Smith, Sheila Kaley, Texas

Sheila Haley and Charlena Renee Smith went to court in 2002, when their twin children were four months old, and obtained the equivalent of a joint custody order giving them both rights to the children. Those children were born to Smith. Haley then bore a child using the same semen donor.

When the couple split up in 2008, Smith denied Haley access to the twins and got a court order declaring the earlier joint custody order void because there wasn't any real dispute between the parties at the time. (Also it appears that they should have waited until the children were six months old to file, although I doubt that would have made a difference to the court.) (Background to the case here [pdf]).

Well, the Texas appeals court last month rebuffed Haley's efforts to remain connected to the lives of her children.

The appeals court ruled that Haley lacked standing under the relevant Texas statute because, at all the times she was parenting the children, their bio mom, Smith, was also caring for them. This case sets up a split in Texas over this issue. (See my post on a ruling from a different court of appeal in favor of the nonbio mom). That means the Texas Supreme Court is likely to have the last word, and its ruling on this issue will be the law all over Texas.

This latest appeals court ruling just refused to see the difference between planning for and raising children together as two parents and a third party helping a parent raise her children. The court refers to a case in which grandparents were denied standing even though their grandchildren had lived with them, because the children's parents were also living in the home and caring for them. But that situation is completely different from the typical lesbian couple planning for and raising children together. Haley and Smith appear to be such a typical lesbian couple.

The ruling is primarily based on Texas statutes concerning who may file for custody/visitation, otherwise known as standing to file; without standing a court does not even hear evidence about the well-being of the children. But the court also suggests that the constitutional right of parents to raise their children is violated if it is too easy for third parties to file for custody. This is also an issue other courts have considered. I especially like the rulings in past few months from Kentucky and California. Haley should be considered a parent, in which case she would also possess the constitutional right to raise her children. Had the children been born in the District of Columbia under our current law, both women would be the legal parents of these children.

Some Texas courts do grant second-parent adoptions. But Texas is also the land where by state statute an adopted child's revised birth certificate cannot list the names of two mothers or two fathers, even when a court in another state has granted a second-parent adoption. I'm not too optimistic about how the Texas Supreme Court will rule on this issue...

(cross posted from Beyond Straight and Gay Marriage

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No standing is just a fancy way of saying you're not important to us.

This is absolutely ridiculous.

Isn't the Texas Supreme Court more, well, not "liberal" but "less biased than your average Texas politician?"

She got a court order invalidating the previous one because there wasn't any conflict at the time of the first one? That seems like all the reason for the first one to be respected!

Well, the idea is that the previous case wasn't really a case so that's why the order wasn't valid. It was an attempt to use the law creatively that the appeals court was all too willing to squash. Still, it's so clear what the intent was that letting the bio mom back away from that is really an outrage.