Supreme Court refuses to hear appeal; appellate court ruled that non-bio mother has standing to sue
DAVID TAFFET | Staff Writer firstname.lastname@example.org
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.