Learning lessons from a tragedy

As a family mourns the loss of a daughter distraught over the outcome of a custody battle, one attorney explains the legal questions over who is — or isn’t — a parent

Michelle May O’Neil
Special Contributor

ParentThe death of Debie Hackett was a tragically shocking end to a family drama that has, to some extent, played out in the local Dallas media. Through her experience and even through her tragic death, Ms. Hackett has provided an opportunity to educate many who are in similar situations.

There seems to be quite a bit of misinformation about her family law case and the litigation that recently ended.

Many people live in families with children that they emotionally consider as “their children.” Knowledge of how the law applies to their relationship with the children in their lives gives power, so even in the midst of this tragedy there is something to be learned.

Texas law has a very specific definition of a “parent.” Texas Family Code defines a parent as:
• the mother (biological);
• a man presumed to be the father (because he was married to the mother when the child was born or at the time of conception);
• a man legally determined to be the father;
• a man who has been adjudicated to be the father by a court of competent jurisdiction;
• a man who has acknowledged his paternity under applicable law; or,
• an adoptive mother or father.

No matter how much love, caring or emotional bonding exists, if someone does not fall into one of these categories, then they are not a “parent” in the eyes of the Texas courts or Legislature.

While a person may feel emotionally connected to a child, the law provides no status for a person who “feels like a parent.” Even if a person is treated like a parent, or even considered a parent by the child, that person cannot be elevated to the legal status of a parent if she does not meet one of the statutory definitions.

So, you either are a “parent” under the law, entitled to the legal privileges and obligations of a parent, or you are not.

Parents have certain rights that are guaranteed under the U. S. Constitution as well as the laws of each state. The most fundamental of these rights is the right to make parenting decisions without questioning or interference from those outside the parenting relationship.

In other words, as long as the parent makes decisions that are not harmful to the child, the parent has the sanctity to make decisions for the child. Only when a decision can bring harm to a child does the law provide a method of reviewing parental decision-making.

The right to make parenting decisions includes the right to decide who the child can be around, spend the night with and visit.

This right is fundamental, like the freedom of speech or freedom of religion, and as a result is heavily protected by federal as well as state law, and highly regarded by most of our courts.

So, in Ms. Hackett’s situation, her former partner was the legal parent of the child and had the right to decide whether the child would associate with Ms. Hackett after their break-up. Only by proving that the former partner’s parenting decisions are harmful to the child in a court-at-law would Ms. Hackett have been able to have a court overrule the parent’s decision to exclude Ms. Hackett from the child’s life.

The jury trial that Ms. Hackett and her former partner went through in December involved the question of the parent’s fitness in her decision-making. The trial was not about whether the parent versus Ms. Hackett should have custody, what time the child should spend with either of them, who should decide what school the child attends, or even an allocation of child support.

The jury decided that the parent was a fit parent. That decision precluded Ms. Hackett from seeking any other orders regarding the child, such as the right to visitation over the parent’s objection.

Some believe that the law discriminated against Ms. Hackett because of the nature of their same-sex relationship. However, Ms. Hackett stood in the same position as a heterosexual person that does not meet the legal definition of a parent.

The law applies equally to any person that is not a parent seeking to intervene in the parenting relationship.

For example, consider a heterosexual married couple where one member of the couple has a child from a prior relationship. When that couple breaks up, the partner who is not a parent would be in the same situation as Ms. Hackett, left to the parental decision-making of the parent to continue the relationship with the child.

Barring proof that the parent is unfit — that her decisions as a parent are harmful to the child — the non-parent would have no right to interfere.

Grandparents often face this problem as well. Many grandparents assist in parenting their grandchildren yet cannot seek court ordered access to the grandchild absent proof of parental unfitness.

As a Dallas custody lawyer, I counsel many non-parents in situations like Ms. Hackett’s. The most important piece of advice I give them is to adopt their partner’s child while the relationship is good and everyone is on the same page.

Adoption grants them legal status as a parent and gives them the legal rights and constitutional protections that come with it.

This then allows — mandates — a relationship between the adoptive parent and the child after the romantic relationship with the other parent ends. Without adoption, the law provides no relief from the high hurdle of the parental presumption over which a nonparent must cross to even have the chance of gaining court-ordered conservatorship, possession with and/or access to the child over the legal parent’s objection.

The current state of Texas law draws no line regarding the gender of the parent or parents a child has. So a child, by adoption, can have two moms or two dads, provided a judge finds such adoption to be in the child’s best interest.

Michelle May O’Neil specializes in Texas family law cases and works specifically with gay parents regarding relationship and custody issues. She is the author of two books, All About Texas Law and Kids, published in 2010, and The Basics of Texas Divorce Law, published in 2011. Ms. O’Neil practices law with her firm O’Neil Attorneys in Dallas.

This article appeared in the Dallas Voice print edition January 7, 2011.

—  Kevin Thomas

Vowels drops 31⁄2-year custody fight

Although courts finally ruled she had standing to bring custody suit, Vowels says continuing the fight would have harmed her daughter


Tammye Nash  |  Senior Editor
nash@dallasvoice.com

THE LAST WORD  |  Kristie Vowels, seated, watches through tears as her attorney, Michelle May O’Neil, standing left, adds her signature under Vowels’ to paperwork informing the court Vowels is dropping her lawsuit seeking joint custody of the daughter she shared with her former partner. Even though attorney Ashley Russell, standing right, had located a clause in the Texas Family Code that might have helped win, Vowels and her attorneys felt the price of victory would have been too great. (Tammye Nash/Dallas Voice)
THE LAST WORD | Kristie Vowels, seated, watches through tears as her attorney, Michelle May O’Neil, standing left, adds her signature under Vowels’ to paperwork informing the court Vowels is dropping her lawsuit seeking joint custody of the daughter she shared with her former partner. Even though attorney Ashley Russell, standing right, had located a clause in the Texas Family Code that might have helped win, Vowels and her attorneys felt the price of victory would have been too great. (Tammye Nash/Dallas Voice)

Kristie Vowels vividly remembers the last day she saw her daughter Meghan. It was the morning of April 24, 2007.

“I took her to school that morning. She had on her khaki shorts, and her black t-shirt and her little black Crocs,” Vowels said.

Meghan was 3 years old then. And Vowels has spent the 3 ½ years since that day fighting for the right to see her daughter again — right up until Friday afternoon, Oct. 8.

That’s when Vowels signed the papers to drop her lawsuit seeking joint custody of her daughter.

“I’m doing this for Meghan,” Vowels said in an interview at her attorney’s office. “I’m doing this because I want to do what’s best for her. I love her enough not to be selfish.”

Vowels and her former partner, Tracy Scourfield, had lived together for several years, since December 1998, when they decided to have a child together.

Scourfield gave birth to their daughter on May 21, 2004, and the couple gave their baby girl both their last names — Scourfield-Vowels.

Vowels and Scourfield ended their relationship a little more than a year later, in August 2005, and Scourfield and Meghan moved out, into an apartment near Vowels’ home. For nearly two years, the two women shared custody of their daughter, with Meghan spending part of her time with Scourfield, and the rest with Vowels.

On Aug. 3, 2006, Scourfield had Meghan’s last name changed to Scourfield. And nine months later, she cut off contact between the little girl and Vowels.  Less than a month later, on May 23, 2007, Vowels filed suit seeking joint custody.

Less than a month after the suit was filed, 302nd Judicial District Court Associate Judge Christine Collie ruled in the case, saying that while Vowels had standing as a “person with substantial past contacts” to sue to adopt the child, she had no standing to sue for custody.

Judge Tena Callahan confirmed Collie’s rulings in November and then again in January 2008, and in April that year, Callahan signed the order, based on a motion by Scourfield, to dismiss the suit.

By the end of April, Vowels had appealed the ruling, but it took a little over a year for the appeals court to issue its decision, finally affirming the dismissal on Aug. 11, 2009. Vowels asked for a rehearing and an en banc review, and on Dec. 1, the appeals court handed down a new ruling, this time in Vowels favor, saying she did, in fact, have legal standing to sue for joint custody.

Scourfield’s motion for a rehearing was denied by the appeals court, as was her appeal to the Texas Supreme Court. And on July 26 this year, the appellate court issued the mandate to return the case to trial court.

Vowels was ready for the next stage of the battle. But she and her attorneys, Michelle May O’Neil and Ashley Russell, knew it would be a hard fight, thanks to legal precedent set in a 2000 ruling by the U.S. Supreme Court in the case of Troxel v. Granville.

In that case, a Washington couple were suing for visitation rights with their dead son’s children. But the Supreme Court ruled that a parent has the constitutional right to rear their children as they see fit, and that to abridge that right, the court had to find the parent unfit.

It is, O’Neil said, a very high standard to meet.

“It’s really hard to disprove the fitness of a parent. Look at Britney Spears and everything she went through, and she was never ruled unfit,” O’Neil said.

Still, there was a chance. In fact, Russell had found a clause in the Texas Family Code that might have even lowered the bar so that Vowels and her attorneys wouldn’t have to try to prove Scourfield unfit to win their case.

To gain standing to sue, Vowels and her attorneys had already proven that she had “actual care, control and possession” of her daughter — through the joint custody arrangement with Scourfield that lasted almost two years — within six months of the date she filed suit.

And then Russell found a clause in the code that said if a parent “relinquishes actual care, control or possession” of a child for six months, that overcomes the presumption of fitness. And the courts had already ruled that Scourfield had relinquished partial control to Vowels over the course of those two years.

It was the chink in Scourfield’s armor, and if Vowels and her attorneys could prevail, it would likely set precedent, O’Neil said.
But, the attorney added, “If we win, what would that look like?”

On Sept. 1, O’Neil met with Scourfield’s attorney to try and reach an agreement that would allow Vowels to see her daughter and end the court battle. After all, Vowels said, “For me, this was never about winning a court case. It was just about being able to see my daughter. That’s all I wanted, to see Meghan.”

But during the meeting with Scourfield’s attorney, O’Neil said, it became blisteringly clear that Scourfield would never settle.

“I tried everything to get him [Scourfield’s attorney] to make a settlement. I hoped that after 3½ years, she would soften some and agree to something. I used every persuasive argument I could think of,” O’Neil said. “But it became painfully obvious to me that no matter what her lawyer thought or said, or what I said or what Kris said, there was never, ever going to be a settlement offer.”

Vowels recalled that day and her conversation with O’Neil.

“Michelle and I walked outside after she met with Tracy’s lawyer and sat down, and I remember her telling me what took place. Then she said, ‘You know Kris, I don’t know if I can win this for you,’” Vowels said. “I was so taken aback. I said, ‘Yes, you can.’”

But O’Neil wasn’t swayed. “I asked her, if we do win, what will that look like? I really wanted her to think about that, about what it meant to keep fighting and what it would mean if we won,” she said.

“We could go through this horrible, protracted fight, and I knew that on every ruling from the judge that didn’t go her way, Tracy would appeal it, all the way to the Supreme Court. If we go through three or six or nine more years of court battles, even if we win everything, what does that really look like? Even if the court gives you custody, will Tracy support your relationship with Meghan? What will it do to Meghan?”

And that was what cemented Vowels’ decision. She and O’Neil set an appointment for later to make the final decision, but Vowels already knew what she had to do.

“I was OK that night. I was OK that next week. But not really,” Vowels said. “Grief was knocking on my heart, and it was knocking hard. I realized that I had been in some phase of grief for 3 ½ years. I hadn’t been living; I had just been functioning. I functioned at a high level, yes, but I had limited myself emotionally.”

O’Neil said Vowels had stayed positive throughout the fight, always putting up a brave front. But she knew the struggle was wearing on her client.

“Every hearing, every meeting, Kristi came to that courthouse thinking, ‘Today’s the day that I’ll get to see Meghan again.’ Every time, even when she knew that it wouldn’t actually happen, she came with that attitude. It was really affecting her ability to just live her life.”

And so Vowels decided to end the fight. With her attorneys standing behind her, as they had done for more than three years, Vowels signed her name with a shaking hand to the papers that would end the case.

It’s been a long, hard battle, but Vowels said she is ready now to move on with her life, even though she will always love her daughter and will always think of herself as Meghan’s mom.

For the two attorneys, who describe themselves as “two straight, white, Republican women with husbands and children,” this case has been life-changing.

“I had just been practicing maybe a year when Kristi came to us with this case,” Russell said. “I was just learning to navigate the family courts system and figure out where everything fit. Then this case came along and blew that all wide open. I realized that there were all these people, all these families and children who don’t fit into these neat little slots made for us by the law.

“This case really heightened the awareness for me that in reality, people are not all treated fairly under the law, and that is not right,” Russell added. “You can only do the best with what you have, but we all have to fight for what is right.”

O’Neil said that she already had an idea of the legal barriers that LGBT people face, thanks to her time as a young lawyer working in the Texas attorney general’s office.

“That was when the attorney general was defending the sodomy statute in the case that eventually went to the Supreme Court,” O’Neil said. “And as a Baylor Baptist bow-head girl, that was a real shock to my system, believe me! But through that, I got exposed to the prejudices so many people are subjected to, and I really learned compassion [LGBT people and the defendants in the case], even though I was defending the statute.

“That experience really broadened my horizons, and I have always since then made it my personal policy that I would never withhold my help from someone just because they were different from me,” O’Neil continued. “And I think it is sad that some [LGBT] people think that there aren’t any [non-gay] lawyers they can rely on. There are prejudiced people, and there are prejudiced attorneys. But that’s not us. It’s sad to think that people might judge us on our orientation.”

O’Neil said she has never had another case like Vowels, which has proven to her yet again that “a child can never have too many people to love them.”

“This case,” she said, “certainly has given us an opportunity to try and make a difference. I believe we have made a difference, and I hope that it will continue to get better for others at least in part because of what we have done.”

While Vowels said she will never close the book on her relationship with her daughter, it is time to start writing a new chapter in her own life.

“I really believe we all have a path to walk. What matters is how you choose to talk that path,” she said. “I could not have gotten through this without Michelle and Ashley, and I couldn’t have gotten through it without my faith in God. My faith is even stronger now, and I think I can be an even better Mom now. I believe that my love for Meghan is what will allow me to open my heart and my life to another child.

“What it all comes down to is that we have created change; we have created opportunities,” Vowels said. “I always say you have to be the change you want to see in the world. That’s what I am trying to do.”

This article appeared in the Dallas Voice print edition October 15, 2010.

—  Kevin Thomas

Vowels custody case returned to trial court for hearing

Supreme Court refuses to hear appeal; appellate court ruled that non-bio mother has standing to sue

DAVID TAFFET  |  Staff Writer taffet@dallasvoice.com

Kristie Vowels
Kristie Vowels

The Texas Supreme Court has refused to hear an appeal by a lesbian mother seeking to block her former partner from seeing their daughter. The case now returns to District Judge Teena Callahan’s court for trial.

Kristie Vowels and Tracy Scourfield were partners for four years. Together they had a daughter, with Scourfield as the birth mother. After they split up, Vowels saw the child on a regular visitation schedule for about a year, but then Scourfield cut off contact between Vowels and the child.

Vowels sued for visitation rights based on Texas law that allows someone who provided six months of care, control and possession ending within the last 90 days to file for custody.

Callahan originally ruled that Vowels did not meet legal standing to sue. Michelle May O’Neil, Vowels attorney, said Callahan gave no reason for her ruling.
Vowels appealed that ruling. The appeals court initially sided with Scourfield but later reversed itself to side with Vowels.

The Supreme Court returned the case to the appeals court, which then returned the case to district court.

O’Neil explained that non-biological parents in custody and visitation cases have to meet what is called the Troxel standard, named after a U.S. Supreme Court ruling in a child custody case.

“The presumption is that parents act in the best interest of their children,” O’Neil said.

Vowels said her former partner is a good mother. But whether or not Vowels gains custody could revolve on whether she and her attorneys can show any flawed decision-making on the part of her former partner.

“The flaw is that she unilaterally ripped the child from someone the child called mom,” O’Neil said.

O’Neil said that the case is being cited around the state and will affect heterosexual stepparents, grandparents and other caregivers as well.
“It’s legally the same question,” O’Neil said.

Callahan is the same judge who later ruled in a same-sex divorce case last October that the Defense of Marriage Act unconstitutionally denies equal protection to same-sex partners.

O’Neil said she knows the judge will approach the case without some of the prejudices others might have, but the ruling in the divorce case won’t change her approach to the Vowels trial.

Vowels said her commitment to her daughter is unwavering.

Although she has had no access to the child for the last three years, she said her daughter has a college account that she has continued to fund.

“That’s my daughter and I’m going to do what I can to fully support her,” Vowels said.

A hearing is scheduled for September. At that time a trial date could be set and O’Neil said she will ask for a temporary visitation order.

O’Neil said that Vowels and Scourfield had talked about completing adoption papers before they split up. She said that had the adoption been completed, this would have been a very different case.

Once an adoption is completed, there is no question of parental rights. The burden of proof would have been on the biological mother to show some cause to prevent the adoptive parent from seeing the child.

“Headline to parents out there,” O’Neil said, “Get the adoption done.”

This article appeared in the Dallas Voice print edition August 6, 2010.

—  Michael Stephens