San Antonio Judge Will Hear Lesbian Divorce and Custody Case

Rejecting a motion by the Respondent to dismiss a divorce and child custody action, Bexar County (Texas) District Court Judge Barbara Hanson Nellermoe ruled on April 22 in A.L.F.L. v. K.L.L., No. 2014-CI-02421 (Bexar County, 438th Jud. Dist.), that a lesbian couple married in Washington, D.C., in 2010 could get a divorce in Texas, their current state of residence, because Texas laws banning the recognition of same-sex marriages are unconstitutional. She ruled that Texas’ refusal to recognize the out-of-state marriage of a same-sex couple with a child created a “suspect classification” of children deprived of legal connections to their parents.

Judge Nellermoe relied heavily on a recent ruling striking down the Texas same-sex marriage ban by U.S. District Judge Orlando Garcia, De Leon v. Perry, 2014 WL 715741 (W.D. Tex., Feb. 26, 2014). Although Judge Garcia stayed his decision pending the state’s appeal to the U.S. Court of Appeals for the 5th Circuit, the stay does not prevent Judge Nellermoe from relying on the ruling as a “persuasive precedent” guiding her own legal analysis.

A.L.F.L. and K.L.L. decided to have children together after they were married. K.L.L. became pregnant through donor insemination and gave birth to their child in February 2013. Several months later the women separated, and shortly after the child’s first birthday A.L.F.L. filed a petition for divorce, seeking not only to dissolve the marriage but also to get a legal determination of her parental rights. She sought orders regarding “conservatorship, possession and access, child support, and a division of the marital estate,” according to Judge Nellermoe’s opinion. K.L.L.’s response was to assert that the court has no jurisdiction because Texas doesn’t recognize the marriage, and she asked that the case be dismissed.

Judge Nellermoe explained that Judge Garcia ruled in his case that “Texas’ denial of recognition of the parties’ out-of-state same-sex marriage violates equal protection and due process rights when Texas does afford full faith and credit to opposite-sex marriages celebrated in other states. On this reasoning, alone,” she wrote, “Petitioner would have standing to pursue her divorce in a Texas state court.”

But she found even more compelling that this marriage involves a child. Because the “best interest of the child” is supposed to be the court’s “primary consideration,” she wrote, the court must assert jurisdiction in this case to protect the child’s interest as well as the parents’ interests.

“Petitioner joins a chorus of concern that a ‘new class of children without mothers or fathers increasing the costs of corporate and governmental spending’ arises from the rash of state constitutional and statutory discriminatory restrictions against the children of same-sex couples,” she wrote. “By denying their parents the right to marry, Texas has created a suspect classification of children who are denied Equal Protection of the law under the Fourteenth Amendment. Immutable protections for the children born of same-sex marriages require the same protections as those born from other marital and intimate relationships, e.g., education, child support, hereditary rights, tax benefits.”

The judge cited two important U.S. Supreme Court decisions, Plyler v. Doe, 457 U.S. 202 (1982), striking down a Texas statute that withheld funds from local school districts to educate children who were not “legally admitted” into the United States and authorizing districts to refuse to enroll such children, and Lalli v. Lalli, 439 U.S. 259 (1978), holding that “illegitimate” children were a “suspect classification” requiring intermediate scrutiny in equal protection cases. She then quoted the Petitioner’s brief, arguing that “these children, like ‘illegitimate’ children and children of undocumented workers, are entitled to all the legal protections afforded to other similarly-situated children.”

Judge Nellermoe concluded her decision with a list of findings, key among them that Texas’ constitutional amendment banning same-sex marriage and its statutes implementing that ban are “facially unconstitutional” and that various Texas statutes that would deprive the court of jurisdiction to protect the best interests of the children of same-sex married couples are unconstitutional as applied to this situation. She found as a matter of law that “Petitioner and Respondent are the parents of the child the subject of this suit” and that “No other legal parent of the child exists.” Based on these findings, she denied K.L.L.’s motion to dismiss the case, and ordered the parties to consult the clerk about scheduling a hearing on the Petitioner’s divorce and custody case. She also directed that a copy of her Order be sent to the Texas Attorney General’s Office.

Judge Nellermoe’s ruling came as about five months have passed since the Texas Supreme Court heard arguments in two same-sex divorce cases, in both of which the Attorney General’s Office had appealed rulings by lower courts asserting jurisdiction to decide these cases. Judge Nellermoe could have put this case on hold and waited for the Texas Supreme Court to rule, but the involvement of a young child in the case clearly led her to decide that it was more important to move forward so that an appropriate ruling could be made on the relationship between this child and its parents.

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