It’s no secret that Texas law is in a state of limbo when it comes to same-sex marriage. Earlier this year, a federal court struck down the state’s 2005 law prohibiting recognition of same-sex marriage but stayed that order pending further deliberation by the federal Court of Appeals. Meanwhile, Texas same-sex couples who want to get married will have to go to another state to do so. Texas residents who are in a legal same-sex marriage but want to get divorced may be stuck waiting for the courts and the state government to figure out what to do next.
Two Texas residents who are trying to get a divorce recently saw their custody battle – and their child – get caught in the middle of this legal confusion. The two women have married four years ago in Washington, D.C., where same-sex marriage is recognized. One of them bore a child in February 2013 and the couple began raising the baby together. However, they separated later that year and one of the women filed for divorce and sought joint custody.
The other woman responded by arguing that her spouse is not the biological or adoptive mother of the child. She asked the court to dismiss her spouse’s petition. However, a Bexar County judge ruled that the divorce should be heard, citing the federal court’s decision striking down Texas’ ban on same-sex marriage.
Shortly afterward, the Texas attorney general got involved, asking an appeals court to issue a stay on the county judge’s ruling. A three-judge panel agreed, and now the divorce and custody battle is on hold.
According to the lawyer for one of the women, his client has not seen her child for eight months while she is waiting for the court to begin to figure out how to evaluate her petition for joint custody.
Many states have already begun to legalize same-sex marriage, and perhaps Texas will soon join them. In the meantime, Texans who are trying to end same-sex marriage face legal and practical hurdles that other Texans don’t have to face when they seek a divorce. A Texas attorney who has experience in this fast-changing part of the law can help clients to assess their options.
Source: Courthouse News Service, “Lesbian Couple’s Texas Divorce Put in Limbo,” David Lee, April 28, 2014