The Texas Court of Appeals (1st District – Houston) ruled on February 10 that the Harris County District Court had properly ordered the registration of a California parentage judgment involving a gay male couple who were intended parents under a gestational surrogacy agreement. Ruling unanimously in Berwick v. Wagner, No. 01-09-00834-CV, the court found that such registration complied with the requirements under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a uniform law that has been adopted by both states. Although the ruling does not resolve the merits of a pending custody dispute between the two fathers, whose relationship has ended, it appears to effectively dispose of the biological father's argument that his former partner has no standing to seek a Texas court order concerning a continuing legal relationship to their child.
Jerry Berwick and Richard Wagner began their relationship in 1994, and lived together in Houston from 1997 until 2008. They got married in Canada (no residency requirement) in 2003, as soon as same-sex marriages became available in some Canadian provinces, and decided to have a child together in 2005 through a gestational surrogacy agreement with a married California woman. (By 2005, California family law had developed to the point where it was probably the best place to undertake this.) Berwick provided the sperm used to fertilize anonymously donated ova, and doctors performed the in vitro fertilization process in March 2005, resulting in a pregnancy.
Following a procedure that has been widely adopted in California, Berwick, Wagner, the gestational surrogate and her husband executed necessary documents and Berwick and Wagner filed a petition in a California district court to obtain a court order establishing their parental status towards the as yet unborn child. A written Stipulation filed with the Petition provided that Berwick and Wagner would be custodial parents of any child born as a result of this pregnancy, and the surrogate and her husband would relinquish any claim to parental status. The Petition sought a decree, which the court approved conditionally on September 29, 2005, that recited the parental status of Berwick and Wagner and the non-parental status of the surrogate and her husband, and ordered the hospital in which the child would be born to enter the names of Berwick and Wagner as the only parents on the birth certificate.
The child, C.B.W., was born two months later, on December 7, 2005. Berwick and Wagner took custody of their son, bringing him back to Houston, "where they lived together for several years as a family," according to the opinion for the court by Chief Justice Sherry Radack. However, in 2008, Berwick, the biological father, terminated his relationship with Wagner. Wagner then filed a Suit Affecting the Parent-Child Relationship in the Harris County, Texas, court, seeking to establish a "joint managing conservatorship" of C.B.W. Berwick counterclaimed, seeking sole managing conservatorship, and argued that Wagner lack parental standing as he was neither the biological nor adoptive parent of C.B.W. That suit is still pending.
In the meantime, Wagner filed a separate proceeding seeking registration in Texas of the California court's Decree as a "child custody determination," under Section 152.305(a) of the Texas Family Code. Berwick opposed the suit, claiming that Wagner was mischaracterizing the California Decree, since the Decree itself did not mention custody directly. Although custody was specified in the Stipulation that the parties filed in the California court attached to their Petition, the decree merely indicated that it was issued "pursuant to" the Stipulation, but did not incorporate the Stipulation by reference.
The Texas trial judge ruled that the California Decree should be registered as a "child custody determination," and the Court of Appeals, ruling only on this question, agreed. While agreeing with Berwick that the California court had not incorporated the Stipulation by reference in the Decree, the court agreed with Wagner that "the judgment qualifies as a child custody determination despite the absence of customary custody provisions on the face of the judgment."
"Under the Texas codification of the UCCJEA, Texas courts must recognize and register child custody determinations by courts of other states," wrote Chief Justice Radack, "provided that either (1) the foreign state court 'exercised jurisdiction under statutory provisions substantially in accordance' with the UCCJEA, or (2) the foreign child custody determination 'was made under factual circumstances meeting the jurisdictional standards' of the UCCJEA." Since both Texas and California have adopted the UCCJEA, finding that their statutes were in accord was not a difficult task, and the California court clearly had proper jurisdiction, as the surrogate was a California resident and the child was to be born in California.
The more significant issue was whether the California Decree should be considered to be a custody determination. Here, the court focused on the fact that the Decree not only determined the parental status of Berwick and Wagner but also terminated the "presumed" parental status of the surrogate and her husband. Under California law, when a child is born to a married woman, she is presumed to be the legal mother and her husband is presumed to be the legal father, even though in a gestational surrogacy case neither of those individuals are genetically related to the child. Thus, a court Decree is necessary to establish that the individuals who are intended under the surrogacy agreement to be the child's parents are the legal parents, and to rebut the parental presumption as to the surrogate and her husband. "Applying the plain language of the UCCJEA and the cases interpreting it to the narrow and unique facts of this case," wrote Radack, "we conclude the trial court correctly recognized the California judgment as a child custody determination because it resulted from proceedings in which 'legal custody, physical custody, or visitation [was] an issue' between the presumptive and intended parents." Thus, the Decree was necessarily settling the issue of custody of the child.
Radack devoted the bulk of her discussion to distinguishing and discounting court decisions upon which Berwick relied, and confirming the applicability of cases upon which Wagner relied, and said that the court was "unpersuaded by Berwick's argument that the judgment must expressly mention the word 'custody' to qualify as a child custody determination." She pointed out that the California Decree both terminates the parental rights of the surrogate and her husband and "grants exclusive parental rights and – by implication – custody to Berwick and Wagner," thus supporting the trial court's conclusion.
Berwick also argued that the court cannot make a custody determination, under either Texas or California law, until after a child is born, but the court noted that the California judge had stayed the effect of the Decree until after the birth, a common and accepted practice to avoid this difficult but at the same time ensure that the original birth certificate will contain the names of the intended parents. Thus, the final custody determination by the California court involved a living child, and jurisdiction was properly established.
The upshot is that the Texas court will treat both Berwick and Wagner as legal parents and custodians of the child. In the case still pending before the Harris County District Court, they would have equal status as legal custodial parents to seek appointment by the court as managing conservators, and the decision whether to make a joint appointment or a sole appointment would be based on the same analysis of the child's best interests that would be used in any case involving two adults with equal parental status.
Lambda Legal's Dallas office represented Wagner on the appeal.