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"Non-Bio" Gay Dad Prevails in Texas Parentage Battle

A recent decision by the Texas Court of Appeals in Houston illustrates the complexity -- and the nastiness -- of one particularly ugly gay divorce.
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A recent decision by the Texas Court of Appeals in Houston illustrates the complexity -- and the nastiness -- of one particularly ugly gay divorce. The partners lived in Houston but they traveled to Canada in 2003 to get married and then they registered as domestic partners in California in 2005. Because of the restrictions on gay partnerships and parentage in Texas, they arranged for a surrogate in California to bear their child (with sperm donated from one of them). Prior to the child's birth they obtained a pre-birth declaration of parentage under the Uniform Parentage Act, which is lawful in California. A pre-birth parentage judgment is one of those newly-created legal devices to establish parentage for gay male couples using a surrogate,with both men designated as legal parents even though only one of them has a biological connection to the child. The non-standard nature of this proceeding has become the subject of legal conflict, now that the couple has broken up.

The California parentage judgment expressly stated that both men were legal parents (and the surrogate would not be a parent) and the underlying documents confirmed that the two men were entitled to share custody of the child. This was not controversial when the couple was together, but now, one of the issues in their dissolution proceeding is whether that implied "finding" of joint custody would be binding on the parties now that they have broken up. The bio-dad took the position that the pre-birth decree wasn't binding at all, and that even if it was binding the custody determination was not enforceable. Fortunately the state Court of Appeals disagreed with the bio-dad, and confirmed the validity of the California judgment and its implied custody finding.

Straight couples have their share of nasty break-ups, for sure. Thus, what is "gay" about this battle is not its nastiness, but rather, the legal complexity of the partnership and parentage arrangements and how those complexities play out in the dissolution process. And that is what makes this case both instructive and newsworthy.

Rather than simply getting married in Texas, having kids the old fashioned way, and then getting divorced and having a custody battle in their home town, these guys traveled first to Canada and then to California to legalize their partnership. They hired a surrogate to bear their child and used an unconventional (but lawful) court proceeding in California to establish themselves as legal parents. Now, they may find themselves unable to obtain a dissolution of their partnership or marriage in their home state, since Texas courts have refused in the past to "honor" same-sex marriages by divorcing the partners. And, as this case demonstrates, the bio-dad was able to raise the atypical nature of the parentage judgment in an effort to deprive his ex-partner of shared custody of their child.

This case is a sad illustration of the harmful consequences of what may be the worst aspects of anti-gay bias: discrimination in the form of legal complexity! But ideally, in the future all states will allow same-sex couples to get married and to parent children, and all states will adjudicate the inevitable dissolutions in the same manner as the straight ones. There will still be painful high-conflict divorces, but at least the legal complications of the gay divorces will not be so messy -- or so legally complicated.

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