Timing is Everything.

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When partners decide–together–to have and raise a child, what rights Will a non-biological parent have if the relationship ends?

In Texas, the deadline to assert legal rights as a co-parent is ninety days after the loss of physical custody of the child. In a common same sex scenario, the parents work hard to ease the difficulty of the breakup on their children by reaching agreement on a visitation schedule. But how enforceable are these agreements, if one parent becomes unhappy with the arrangement later?

The number of reported decisions on this issue is indicative of just how common this scenario is. And, to put it mildly, the courts are only now beginning to figure out what to do when applying the standards to same-sex shared custody arrangements. When the rights of a biological parent are matched up against a former same-sex partner–who, by the way, doesn’t have a biological relationship with the child and more often than not, has no formalized legal relationship either–is there even a case?

It depends. Sometimes, as in the case of a lesbian mom known in the law books only by her initials, K.V., it depends on how tenaciously a non-biological parent is willing to pursue the legal claim of parenthood.

K.V. filed suit when an agreed-upon custody arrangement fell apart almost two years after her breakup with lesbian partner, T.S. their daughter was just a year and three months old when their relationship ended. The child’s birth mother was T.S., who conceived through artificial insemination by a sperm donor. The child, referred to in the case as M.K.S.-V., shared the last names of both partners, with hyphenation, as a statement of their shared parenting ideals.

Agreeing that the child would live primarily with the biological mom after the split, K.V. nevertheless participated fully in co-parenting their daughter. She was listed as a parent in the child’s school records, attended school activities, and took care of the child when she stayed home sick from school. They followed a visitation schedule similar to the standard arrangement under the Family code–weekly overnights, alternating weekends, summer vacations and other holidays.

When her former partner abruptly refused to continue the visitation schedule after a parenting disagreement, K.V. filed suit to be named a legal conservator with a court-ordered schedule for visitation. The outcome in court? The suit was summarily dismissed based on the trial court’s reading of the statute that re- quires suit to be filed within ninety days after the loss of physical custody. The decisive issue was that K.V. had failed to file suit to establish her legal claim of conservatorship within the prescribed 90-day period after establishing a separate residence.

Fortunately for the development of the law in Texas on this issue, K.V. did not give up on the court system. She appealed the trial court’s ruling, and then sought a rehearing when the court of appeals initially agreed with the trial court’s dismissal of her case. In a remarkable turn of events, the court of appeals reversed its own ruling on a second hearing in the case. the court’s final decision was that K.V. does have standing to pursue a legal relationship with her daughter.

What was ultimately persuasive to the court of appeals? It was the usual indicators of good parenting: the details of the life that K.V. provided for her daughter during her time at K.V.’s home, the care that K.V. had taken for her safety and well being, the consistency of K.V.’s presence in the child’s life, which continued after the breakup of these parents’ relationship.

These are controlling issues in every case involving the custody of children. It is exactly those arguably mundane activities and concerns that make up the life of a child–their aquarium and sandbox, the relationship with their school teacher, the soothing touch on a feverish face. And the knowledge that the parent will always be there isn’t leaving, no matter what. Those righteous indicators of real parenting also form the basis for a claim in the court system for a legally enforceable relationship with a child.

But, as stated above, timing does matter. The Texas Family code requires actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date that suit is filed. K.V. satisfied the requirement of six months of actual care, control, and possession by following through with a visitation agreement for two years after her breakup with the daughter’s biological mom. But another non-biological parent in a similar situation fell into a legal trap, and was shut out by the court system, when the timing requirements weren’t met.

The irony in that case is that the lesbian partners took steps while they were together to secure the non-biological mom’s legal relationship with their children. Four months after twins were born to one partner using a sperm donor, the two partners together filed a court case and had the non-biological mom appointed as a joint managing conservator of the twins. six years later, and with another child born to the other partner with the same sperm do- nor, the parents found themselves back in court–this time, with the biological mother of twins seeking to void the order granting her former partner a legal relationship with the twins.

The timing problem that controlled the outcome for this family was the six -month requirement of actual care, control, and custody. The twins were only four months old when the original suit was filed, so the non-biological mom had only four months of physical custody when she and her partner together filed suit, and six months is what the law requires. As a result, the twins’ biological mother was successful in ending her former partner’s legal relationship with the twins, and presumably banishing the partner and the twins’ biological half-brother from their lives. While the case continued working its way through the court system for at least another two years, the non-biological mother was never able to overcome the legal hurdles to claiming a continued relationship with the twins, due to this early error in the legal strategy for this family, committed out of eagerness, presumably, and with all the best intentions.

One thing is clear from the reported cases involving shared custody of children by former lesbian partners: contentiousness is certainly not unique to heterosexual custody fights. Lesbian co-parents, however, do have some unique concerns regarding the timing of any legal interventions to protect the non-biological parent’s relationship. These timing requirements can control the outcome for the family, for better and for worse.

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