Last month (while I was on my blogging hiatus), the Texas Court of Appeals (Ninth District) ruled against Dana Ruppert's efforts to retain a relationship with the child born while she was living with the child's biological mother, Stephanie Wells. The facts in the opinion are sparse, but the law is unmistakable.
The opinion reports that the couple began living together before the child, M.J., was born and that their relationship ended in April 2010 with the nonbio mom moving out. (No indication when the child was born or his age). The couple did divide care of M.J., and in May they agreed in writing that each would have certain periods of time with him. The next month Wells stopped the visits, but she allowed them to resume in November 2010. Between November 2010 and August 2011, the child lived with Ruppert about 50% of the time. After Wells again stopped the contact, Ruppert filed a court action in November 2011 requesting sole custody and alleging that Wells was abusive towards the child. The trial court held a hearing. It did not find that Wells was unfit. It awarded temporary primary custody to Wells but did give Ruppert weekends and 2012 spring break with M.J. The appeals court summarized the testimony as showing that Ruppert "filled a role in co-parenting" M.J. when Wells allowed it.
The trial court allowed Ruppert's claim to proceed because it ruled that, as required by Texas law, Ruppert exercised "actual care" and "actual possession" of M.J. for at least six months, ending no more than 90 days before Ruppert filed for custody. But the appeals court said she did not have actual "control" of the child, also required, because Wells could change her mind at any time and because Wells made decisions about M.J.'s school. Wells had given Ruppert written consent to make medical decisions for M.J., but the appeals court said this did not amount to "control" because she never actually had to make any such decisions.
Most disturbing as a legal matter, the court believed its interpretation of the Texas statute was required by the US Supreme Court's ruling in Troxel v. Granville. I have written about courts' interpretations of Troxel in numerous posts. Here is an example of how the Wells court gets it wrong. "While the desirability of compelling Wells to allow Ruppert a right to visitation might be debatable, when viewed from the child's point of view, Troxel does not allow a court to second-guess a fit parent's decision."
Wrong. Troxel involved grandparents who had never functioned as parents of the children at issue. The Supreme Court said there were no "special factors" giving a trial court the power to decide that the children's best interests would be served by visiting with their grandparents. The situation of a same-sex couple raising a child together from birth is just the sort of "special factor" that distinguishes it from Troxel. Fortunately, many courts have acknowledged this distinction. But many miss the point entirely and treat Troxel as a decision that draws a bright line around a biological or adoptive parent and allows no court challenge to her custody or decision about visitation unless she is unfit. That's what theNinth District Texas Court of Appeals has done, and the children raised by same-sex couples in the Beaumont, Texas area are the worse off for it.