As she fights for the right to see her ex-partner’s son, Laura Cooper says she wants to warn other same-sex parents to protect themselves legally
Less than a year after Laura Cooper’s partner had a baby, their relationship ended. Because Cooper isn’t the biological mother and there were no legal agreements in place, she’s now fighting in court for visitation rights.
Last week, a Dallas County district court judge ruled that Cooper has standing in court to seek visitation and ordered the couple into counseling. The judge wants to see whether the two women can agree to a visitation schedule.
An attorney for Cooper’s ex plans to appeal the judge’s finding that Cooper has standing.
But Cooper said that regardless of how the case turns out, she wants to warn others in the LGBT community so they don’t end up in a similar situation.
Same-sex couples who decide to have children together should take certain steps to ensure the rights of both the biological and non-biological parent before the child is born. Cooper said she expected to begin adoption proceedings after the child was born but didn’t think about establishing her standing prior to the pregnancy.
“You never think it will happen to you,” she said. “By not taking care of your ‘modern family,’ the rejected co-parent has to recreate history and demonstrate the biological parent’s intent to have a family together, something the biological parent will be denying.”
Cooper and her partner had been in a relationship for seven years. They decided to have a child and agreed her partner should carry the baby, she said.
Their son was born in June 2011, but they broke up less than a year later.
Cooper and her partner had no paperwork in place naming her as a co-parent when the child was born. After his birth, she said her partner was reluctant to complete a second-parent adoption.
Amy Davis, an attorney representing Cooper’s ex, agreed that no paperwork was in place but disputed other aspects of Cooper’s story. Davis said Cooper knew that she would need legal agreements to protect herself but opted not to sign them because she didn’t want the responsibility of a child.
“Laura’s claim to be a victim of ignorance is untrue and evidence that her so-called crusade has nothing to do with the baby boy she has put in harm’s way by her lawsuit,” Davis said in a statement. “Laura is using this publicity and self-created martyrdom to conceal the truth — she wanted little to do with this baby until she saw him as a way to hurt and threaten my client as their relationship was ending. She’s brought the custody lawsuit for the same reason.”
At Davis’ request, her client’s name is being withheld to protect her privacy and that of the child.
Since the breakup, Cooper said she has spent more than $50,000 in legal fees and hasn’t seen the child since July.
Legal experts say adoption is the best option for non-biological parents seeking to protect their relationship with a child. But a joint managing conservatorship also establishes a strong legal relationship.
If they have neither, non-biological parents must show “care, custody and control” of a child for more than six months to establish standing, according to Texas law.
Ken Upton, a supervising senior staff attorney in the Dallas office of Lambda Legal, said there’s always a strong push to resolve custody cases by mutual agreement.
“But sometimes the animosity is so overwhelming, they can’t act in the child’s best interest,” Upton said.
What constitutes legal parentage varies from state to state, he said. In states with marriage equality and civil unions, both spouses are typically recognized.
In Texas, some judges will perform second-parent adoptions for same-sex couples.
The practice began with one judge in San Antonio but has become common in places like Dallas, Houston and Austin.
Despite Texas’ ban on same-sex marriage and an attorney general who has interfered in family courts, Upton said, many family court judges understand that families come in all shapes and sizes.
“Even in the worst states, judges are starting to do the right thing,” Upton said.
But problems still arise for non-biological parents when rulings are appealed to higher courts.
“Appellate judges go by hard and fast rules,” he said.
Those rules favor biological parents, heterosexual married couples and laws that don’t recognize same-sex relationships.
Cooper’s attorneys, Chuck and Julie Quaid, said non-biological parents are always more vulnerable, especially in same-sex relationships. They recommend getting legal papers in place, beginning before a child is conceived. While custody cases between straight couples revolve around visitation rights and child support, cases between same-sex couples begin with the question of whether the non-biological parent has standing in court.
Since Texas has no relationship recognition for same-sex couples, they should establish their relationship with papers such as medical powers of attorney, wills and other documents to show intent that they are a couple. Joint leases, mortgages and bank accounts also help establish that relationship.
Cooper even suggested going to another state to get married.
While the marriage won’t be recognized in Texas, most fair-minded family court judges will look at a marriage document from another state as proof of intent to form a family.
Cooper, a psychologist, also suggested couples undergo premarital and childrearing counseling. She said to use the time to divide responsibilities and discuss hopes and expectations. She suggested writing up a family plan that can be taken to an attorney to formalize into a legal document.
Should there be a split, the family plan can be used to help a judge or mediator work out a settlement, according to Cooper’s attorneys.
“The message for the community is even though Texas doesn’t allow the gay community to get married, there are ways to protect yourself,” Chuck Quaid said.
The best way is to begin adoption proceedings soon after birth.
In the interim, an attorney can prepare a joint managing conservatorship.
“If something happens, it gives the non-bio mom standing to go in,” Julie Quaid said.
She said in this case she had to prove Cooper had reason to be awarded any visitation.
Cooper presented a copy of the birth announcement. Both names were on it presenting themselves as co-parents.
“You have to prove personal interest,” Chuck Quaid said, adding that a non-biological parent needs to file for visitation within 90 days.
The Quaids said that in addition to an out-of-state marriage certificate showing intent to form a family, contractual wills for monetary care and powers of attorney are papers an attorney can draw up. Life insurance and joint accounts with rights of survivorship also show a judge that the couple was caring for each other and planned to jointly take care of the child.
The Quaids said while Dallas family courts — and even those in surrounding counties — recognize that families aren’t what they used to be, custody cases between same-sex parents are still handled differently.
“The issue shouldn’t have been: Is she a parent?” Chuck Quaid said. “The issue should have been: Was she as good a parent?”
“No one wants to think about their relationship breaking up,” he added. “But if you’re a gay couple, the law’s not going to help you.”
This article appeared in the Dallas Voice print edition February 1, 2013.