The Kids Are All Right – In Texas
One of our inalienable and constitutional rights is the ability to have and raise children. As we wait for the laws of Texas to evolve, what can gay and lesbian parents do to protect themselves and their children? I have posed a hypothetical that could potentially cause problems for the lesbian couple from the movie “The Kids Are All Right.” The fact pattern has been slightly modified from the movie to emphasize potential complications under Texas law.
Hypothetical Fact Pattern
Our lesbian couple has been in a committed relationship for over eighteen years. Nic (Annette Bening) and Jules (Julianne Moore) live in Dallas, Texas. Seventeen years ago, Nic and Jules decided that they wanted to have children together. Nic and Jules each wanted to carry a child to experience the joy of pregnancy. After they met with a doctor, the couple learned that Nic had an ovulation disorder and that she would likely have difficulty conceiving a child. Nic’s doctor harvested a healthy egg from Nic and the couple agreed that Jules would carry Nic’s child to avoid any complications. Jules gave birth to a girl on February 26, 1995 – Joni (Mia Wasikowska). Two years later, Jules was artificially inseminated by the same sperm donor and she gave birth to a boy on March 10, 1997 – Laser (Josh Hutcherson). Just to be perfectly clear, Jules carried and gave birth to both Joni and Laser.
Now let’s throw in a bit of a twist – a little something we call “life.” In June of 2011, Jules became romantically involved with the sperm donor – Paul (Mark Ruffalo). Two weeks after the affair began, Jules told Nic that she was no longer in love with her and wanted to end the relationship. Jules moved out and took Joni and Laser with her. After several screaming matches, Jules now refuses to allow Nic to see and/or talk to the children.
Nic hired a lawyer and filed a custody lawsuit in Dallas, Texas. In response, Jules hired an over-zealous-cut-throat lawyer who told Jules that the parent-child relationship is set forth under section 160.201 of the Texas Family Code which states:
The mother-child relationship is established between a woman and a child by:
1) the woman giving birth to the child;
2) an adjudication of the woman’s maternity; or
3) the adoption of the child by the woman.
The lawyer further explained that since Nic failed to adopt the children or to seek a court order adjudicating her as a mother, she was simply considered an “egg donor” under the Texas Family Code and had no rights to the children. As Jules gave birth to both children she was considered their legal mother according to the Texas Family Code. Jules’ attorney filed a Motion to Dismiss the lawsuit for a lack of standing. Unfortunately, the judge agreed and dismissed Nic’s lawsuit without giving her any visitation with the children.
The Family Code does not yet recognize Nic’s role as a parent. Nic failed to legally adoption the children and she failed to obtain a court order with an adjudication of her parentage to the children. Surely, Nic never imagined that her relationship would end this way; nor did Nic believe that Jules would ever contest the fact that she had been a mother to both children throughout their entire lives. Sadly, Jules has learned that she can manipulate the law to keep Nic out of her life and she has taken advantage of the situation.
Unfortunately, Nic is in a lose-lose situation. The courts do not recognize Nic’s relationship or role and Jules has become unpredictable and volatile. Nic’s attorney can certainly make the best equitable argument and hope that a judge will listen to the issues, but there are no guarantees. This begs the question: How can same sex couples who have participated in assisted reproduction protect themselves and their children?
Same-sex couples who have children together through assisted reproduction can protect themselves by hiring lawyers to draft up a custody agreement which gives both parents legal rights to their children. A custody agreement can be a simple document which identifies and establishes the parent-child relationship. The best way to handle this scenario is for each party to hire a collaborative lawyer to work out a legally binding agreement. The collaborative setting is a safe and productive way to avoid future problems when relationships go south. In a perfect world, same-sex couples would remain partners forever. In the real world, it is imperative that same-sex couples in similar situations take the necessary steps to legally protect themselves and their children.