Putting together the power of the U.S. Constitution’s Full Faith and Credit Clause and a verdict by a jury who got to see the parties testify, a Texas gay co-parent has preserved his status as “sole managing conservator” of the child he and his former partner/spouse conceived with the help of a gestational surrogate. Herein lies a somewhat complicated tale providing new evidence of the extraordinary developments in LGBT family law over the past few years. The case is Berwick v. Wagner, 2014 Westlaw 4493470.
Jerry Berwick and Richard Wagner began their relationship with each other in 1994. They were legally married in Canada in 2003, and registered as domestic partners in California in 2005, but lived together in Houston, Texas, beginning in 1997. They wanted to have a child through gestational surrogacy, and made a gestational surrogacy agreement with a married California woman in 2005. A donated egg was fertilized with Berwick’s sperm and the resulting embryo was implanted in the surrogate, who gave birth to a son, called C.B.W. by the Texas Court of Appeals in Houston in its September 11 decision affirming the jury verdict. Following a procedure commonly used in California, the men filed a court action before the child was born, through which a California court entered an order titled “Judgment of Paternity,” declaring that Berwick and Wagner were each to be a “legal parent” of C.B.W., ordering the hospital to list the two men as the child’s parents on the birth certificate, and declaring, consistent with the surrogacy agreement, that neither the birth mother nor her husband were legal parents of C.B.W. After the child was born, Berwick and Wagner brought him back to Houston where they lived together as a family for several years, until Berwick ended his relationship with Wagner.
Berwick “got religion,” decided he wasn’t really gay, and ended up marrying a woman whom he met on-line. When Berwick ended the relationship, Wagner took action to preserve his relationship with his son, filing a Suit Affecting the Parent Child Relationship in the Texas trial court in Harris County, seeking an order that Wagner and Berwick be appointed “joint managing conservators” of C.B.W. This would give them equal parental rights, consistent with the California court order. Berwick responded by arguing that as the biological father he should be appointed sole managing conservator. He contended that Wagner lacked standing to seek custody because he was not “biologically related” to the child.
In a separate legal proceeding provided by Texas law, Wagner registered the California “Judgment of Paternity” in the Harris County court, and the trial court “confirmed” the California order, thus recognizing Wagner for purposes of Texas law as a legal parent of C.B.W., thus giving him standing to seek appointment as a managing conservator of the child. Berwick appealed, the court of appeals affirmed the trial court’s order, and the state supreme court refused to review the case.
Thus, the original suit filed by Wagner went to trial. In Texas, these cases are tried before a jury, which is charged with deciding who should be appointed as conservators for the child. The jury decided that Wagner should be the sole managing conservator, appointing Berwick to the lesser status of possessory conservator, meaning he would be entitled to child visitation and some participation in decision-making for the child. However, Wagner, the non-biological father, emerges as the main custodian of the child with the greater share of decision-making authority.
Berwick appealed this decision, as well as the trial court’s rejection of Berwick’s request that C.B.W.’s name be changed to omit the W.
In affirming the ruling, the court of appeals gave great weight to the full faith and credit clause of the Constitution. A California court with appropriate jurisdiction of the parties had issued a judgment naming both men as legal parents of the child. After quoting the federal constitutional provision, Chief Justice Sherry Radack wrote for the court, “Texas courts have thus consistently recognized that the ‘full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of the other states.'”
“This full faith and credit has been repeatedly applied in Texas to other state’s adjudication of parentage,” Radack continued. Referring to the California judgment that Wagner had registered with the Harris County court, Radack wrote, “This Court has already held that the judgment was properly registered in Texas, and that the California court had jurisdiction to enter the judgment. The trial court correctly decided that this final, unappealed judgment adjudicating Wagner as C.B.W.’s parent — a judgment entered at the request of Berwick, Wagner, and C.B.W.’s surrogate mother and her husband — is entitled to full faith and credit. And none of the arguments Berwick advances in support of his position that the trial court erred are supported under Texas law.”
Berwick was relying primarily on a public policy argument, grounded in the contention that a child in Texas can have only one legal father at a time and that surrogacy agreements under a Texas statute are unenforceable unless the intended parents are a married heterosexual couple. However, wrote Radack, “Berwick cites no authority for deeming a foreign paternity judgment to be so repugnant to Texas policy to render it void and subject to collateral attack. And Berwick’s arguments ignore the strong state public policies favoring stability and finality in matters of parentage evidenced by numerous statutes.”
The court also found that the question whether Berwick was the child’s biological father was essentially irrelevant to the outcome, rejecting his contention that as biological father he was solely entitled to custody of the child. Since the Texas courts recognize Wagner as a parent of the child through operation of the California judgment, Berwick’s biological tie to the child is irrelevant to this lawsuit, because all legal parents are treated equally, whether they became parents through biology, adoption, or some other legal process. In a custody dispute between legal parents, the court’s job is to decide what is in the best interest of the child, and Texas, unlike most other states, gives that task to a jury. The court of appeals found that the trial record was full of evidence that would support the jury’s determination that Wagner would be the preferable managing conservator, since he was more likely to preserve the child’s relationship with his other father, while Berwick (and his wife) were hostile to Wagner playing any parental role in the child’s life.
“Specifically,” wrote Radack, “the jury had already heard about Berwick telling Wagner that he would never work with him to co-parent because Wagner needed to move on and ‘get his own family,’ ‘his own little boy.’ The jury had also heard recordings of Berwick on different occasions telling Wagner that C.B.W. is ‘not your child,’ ‘not your son,’ accusing Wagner of ‘destroying my child,’ and mocking Wagner for being ‘in denial,’ and pretending that C.B.W. is actually his son.”
Berwick also attacked the verdict by arguing that several potential jurors were excluded as victims of “religious discrimination.” They were questioned about their views about the parties’ sexuality and marital status, and several potential jurors made statements suggesting that they could not, in the opinion of the trial court, give an unbiased consideration to the case. “We conclude that the trial court did not abuse its discretion in finding these jurors to be disqualified,” wrote Radack. “The trial court did not strike every panel member who indicated they might have religious objections to homosexuality; rather, the court struck only those jurors who unequivocally indicated that they held such strong convictions that they could not base their decisions on the law and evidence.”
The opinion included lengthy analysis of the trial record, from which the court concluded that “there is factually sufficient evidence to support the jury’s finding that appointing Wagner as sole managing conservator is in C.B.W.’s best interest,” and rejecting Berwick’s argument that the trial judge erred by denying Berwick’s request to change C.B.W.’s name to eliminate Wagner as his surname. “Given that C.B.W.’s legal name was established by the California court at Berwick’s request and that Berwick does not argue here that a name change is in C.B.W.’s best interest,” wrote Radack, “we cannot conclude that the trial court erred.”
Wagner is represented by attorney Ellen A. Yarrell. Berwick is represented by Austin R. Nimocks, a name that will be familiar to those who have been following the federal appellate arguments over marriage equality, since he is one of the attorneys who has been arguing against marriage equality in the courts, and is generally associated with religious opposition to same-sex marriage.