Thursday, December 17, 2009

Texas court does about face -- recognizes non-bio mom

A few months ago, I wrote about a Texas appeals court ruling that a nonbio mom could not file for custody or visitation of a child she had co-parented. In a move that surprised everyone, the court reversed itself earlier this month. The nonbio mom had filed a routine petition for rehearing, something almost never granted. The court sat on the petition and then, rather than grant that petition, it released a ruling on its own vacating the earlier judgment and issuing a new the nonbio mom's favor!

The court ruled that K.V. was "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" and that therefore she could file her petition. It referred to prior court decisions involving a stepmother and a grandmother who were able to maintain their actions. Her are the facts that mattered to the court:

K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about rearing a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Because T.S. and K.V. wanted to maintain some continuity for the child, they agreed on a schedule allowing K.V. regular access to and possession of the child. ... From August 5, 2005 through April 25, 2007, during the school year, M.K.S. visited K.V. overnight once a week, alternative Sunday afternoons, and alternative weekends beginning on Friday afternoons. During the summer, the weekend visits sometimes started on Thursday afternoon. M.K.S. also visited K.V. on some holidays.

M.K.S. had her own room at K.V.'s house where she kept her toys, movies, a television, and an aquarium. She had a sandbox and a slide set outside. K.V. also modified her house by building a wrap around deck with gates on it so that the child would have a safe environment in which to play. There were occasions when K.V. would pick the child up from school when she was sick and then purchase and administer medication. K.V. was listed as a parent on the child's school records. K.V. also attended school activities and the teachers were aware that K.V. would pick the child up from school during her periods of possession. Witnesses testified that T.S. has referred to K.V. as the child's mother and treats K.V. as one of the child's parents. K.V. also established a college fund for M.K.S. After the relationship between K.V. and T.S. ended, the couple continued to attend church with the child as a family unit. T.S. discontinued K.V.'s visits with M.K.S. on April 25, 2007. The original petition was filed on May 23, 2007.

[T]he record does not suggest this pattern of possession and caregiving was intended to be a temporary arrangement. To the contrary, the possession agreement and the parties' actions evinced an intent that the child occupy K.V.'s home consistently over a substantial period of time. Therefore, we conclude the trial court erred in determining that K.V. did not establish the six month period of actual care, custody, and control requisite to establish her standing to file [a petition].

This is an amazing win, although of course there will have to be a trial now on how much contact will be allowed between K.V. and her daughter.

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