Texas Divorce Attorney Blog
Texas divorces of same-sex couples can involve unique legal issues. Recently, a Texas appeals court considered three related cases involving one spouse’s relationship to a child born during the marriage.
According to the appeals court, the parties, A. and J., signed an agreement with a reproductive services agency during the marriage. A. gave birth to R.G.S. following a reproductive procedure using donor sperm. When A. filed for divorce in 2020, she identified R.G.S. as a child born of the marriage.
The parties entered into a Mediated Settlement Agreement (“MSA”), pursuant to which J. was to be adjudicated a parent of the child. The court asked the parties’ attorneys to brief on the issue of whether the court could “adjudicate a second mom.”
J. argued she should be adjudicated the child’s parent. She argued alternatively that she had standing to file a suit affecting the parent-child relationship under Tex. Fam. Code 102.003(a)(9) because she had actual care, control, and possession of R.G.S. and under section 102.003(a)(15) as an intended parent of a child born under a gestational agreement.
The trial court was presented with a proposed agreed final divorce decree. The court adjudicated A. the child’s mother. It did not adjudicate J. as the child parent but found she had standing under Tex. Fam. Code 102.003(9). The court approved the rest of the parties’ agreement under the MSA and signed the proposed decree. Both parties signed the decree under the following language: ““APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE.”
Challenge to the Divorce Decree
J. did not move for a new trial or appeal the decree. She did, however, petition the court to declare the divorce decree unconstitutional and void. She argued the court not adjudicating her the child’s parent violated her due process and equal protection rights. The trial court denied the petition, and J. appealed.
On appeal, J. argued the decree violated her equal protection rights because the court had not applied the Uniform Parentage Act equally without regard to gender. She also argued the court did not have subject matter jurisdiction to enter a decree that was not consistent with the MSA. A. argued J.’s challenges constituted an impermissible collateral attack.
The appeals court concluded the decree was final and the trial court’s plenary power expired 30 days after it was signed. Although a trial court generally cannot set aside a judgment after expiration of its plenary power outside a bill of review, it can correct a clerical error. The appeals court rejected J.’s argument there was a clerical error because the language in the decree matched the court’s pronouncement at the hearing.
J. had not filed a timely post-trial motion, appeal, or bill of review, so she could only challenge the decree through a permissible collateral attack. A void judgment may be collaterally attacked. A judgment is void if the court did not have jurisdiction over the parties or subject matter, but other errors generally make the judgment voidable. The appeals court concluded the court had jurisdiction over the subject matter and the parties, so the judgment was not void.
The appeals court rejected J.’s equal protection argument because she could have raised it in a post-trial motion or appeal.
The appeals court also rejected her argument regarding the decree differing from the MSA because J. had agreed to the decree.
The appeals court concluded the decree was not void and therefore not subject to a collateral attack and confirmed the judgment.
Petition to Adjudicate Parentage
In a separate case, J. petitioned to adopt R.G.S. or alternatively to adjudicate parentage. A. argued the claims were barred by res judicata and collateral estoppel. The trial court denied the petition to adjudicate parentage and severed it from the adoption petition. J. appealed.
The appeals court concluded J.’s claim for adjudication of parentage was barred by res judicata. The appeals court affirmed the trial court’s judgment denying the petition to adjudicate parentage.
Adoption Petition
The court ordered a custody evaluation in the adoption case. The custody evaluator testified R.G.S. considered J. “a primary parent.” He said she was very active in the child’s life and was meeting R.G.S.’s needs. He expressed concerns A. may be trying to minimize J.’s relationship with the child and indicated it would be harmful to the child if A. tried to alienate J. from her. He said the child was bonded to both parties. He also testified it was difficult for the parties to make important decisions and believed J. needed “guaranteed access, possession, and decision-making roles[.]” He said R.G.S.’s needs would be met and it would be in her best interest if the current orders stayed in place.
J. testified the parties had intended to both be R.G.S.’s parents. She testified there was no question R.G.S was her child before they separated. She said A. had refused to let her adopt the child even when they were together.
A. testified she did not think adoption was in R.G.S.’s best interest. She said her relationship with J. was difficult and it was hard to make decisions. She said she had signed a gestational agreement that provided both parties would be R.G.S.’s legal parents and had also agreed J. would be on the birth certificate. She intended for them both to be the child’s legal parents at the time of the birth. She also signed the MSA adjudicating J. the child’s parent.
The trial court denied the petition to adopt and J. appealed. She argued the trial court erred by failing to waive the requirement the child’s managing conservator consent to adoption. Pursuant to Tex. Fam. Code § 162.010(a), the court may waive the consent requirement if it finds consent is being refused or revoked without good cause. There is good cause if the managing conservator has a good faith reason to believe withholding consent is in the child’s best interest.
J. argued there was not evidence to support a finding of good cause. J., however, had the burden of proving a lack of good cause. The trial court found A. had good cause to refuse consent. The court also found the adoption was not in the child’s best interest.
A. testified she did not think the adoption was in the child’s best interest. The custody evaluator testified he did not “have any opinions about adoption.” He said the child’s best interests would be met with the existing orders. The appeals court concluded J. had not shown A. did not have good cause to withhold consent. The appeals court also concluded the trial court had sufficient information to exercise its discretion and had not acted arbitrarily or unreasonably. The appeals court concluded there was no abuse of discretion in the court’s decision not to waive the consent requirement.
J. argued A.’s refusal to consent was not consistent with their prior agreements. She argued A. had not provided any evidence of a change in material facts to justify the changed position. She further argued that “the defense of quasi-estoppel” prevented A. from taking an inconsistent position when she had acquiesced or benefitted from the other position.
The appeals court rejected her arguments. J. had testified A. had “consistently refused. . . “ to allow her to adopt R.G.S. even while they were together. Additionally, Tex. Fam. Code § 162.011 provides consent may be revoked by filing a signed revocation at any time before the court renders an order granting the adoption. The court is required to hold a hearing to determine if the there is good cause to withhold or revoke consent. The appeals court noted there is nothing in the statute regarding estoppel if the managing conservator previously consented to the adoption. The trial court held the hearing and found A. had good cause to refuse consent and revoke any previous consent. The appeals court found no abuse of discretion in the court’s findings.
J. argued she was entitled to adoption by estoppel under the “presumed father” statute. Tex. Fam. Code Ann. § 160.204(a)(5). The appeals court concluded even if the statute did establish J. as a presumed parent, it did not eliminate the requirement the managing conservator consent to the child’s adoption.
Furthermore, the court held the trial court had not abused its discretion in finding adoption was not in the child’s best interest in light of the testimony of A. and the custody evaluator.
The appeals court affirmed the order denying the adoption petition.
Seek Legal Guidance
This case illustrates the complications that can occur in same-sex divorces. Same-sex couples planning a family using donor sperm or eggs should consider seeking the advice of an experienced Texas family law attorney before the birth of the child to ensure both parents’ rights are protected. The attorneys at McClure Law Group can advise you regarding surrogacy agreements and parental rights, or help you protect your family if you are facing divorce or a custody case. Call us at 214.692.8200 for a consultation.