Houston Gay Ex-Spouse Wins Custody Fight

A Houston Court of Appeals recently ruled that a good dad is a good dad, regardless of the labels that may be applied to the family.

Berwick v. Wagner involved a couple who had been married in Canada and registered as domestic partners in California. While living in the Golden State, they arranged to have a child through a surrogate. Mr. Berwick donated the sperm.

When C.B.W was born, a California court entered a “Judgment of Paternity” which ordered the hospital to put Mr. Berwick’s name in the place for “father” and Mr. Wagner’s name to be in the blank for “mother.” The family later moved back to Houston. Subsequently, Mr. Berwick renounced his homosexuality and married a woman. A gay child custody dispute followed.

Holding

The jury awarded custody to Mr. Wagner, with visitation for Mr. and Ms. Berwick.  In affirming that decision, the Court of Appeals made some interesting points about family law:

• Full Faith and Credit: The Constitution says that the decisions in one state must be applied by another state, unless there is some compelling public policy reason. The Court saw the opposite situation. If the California paternity judgment was not followed, it would imply that non-biological parents, including adoptive and step-parents, are somehow defective. That conclusion is inconsistent with Texas law.
• Evidence Sufficiency: The Court of Appeals isn’t determining whether the jury made the right decision, but rather if there was sufficient evidence to support the decision the jurors made. Trial testimony strongly suggested that Mr. and Ms. Berwick had some animosity towards Mr. Wagner, either against him personally or due to his sexual orientation, which would have made them poor co-parents.

The court also upheld five jury strikes of people who said their strong feelings about homosexuality would cloud their judgment, rejecting Mr. Berwick’s argument that the strikes were based on religion.

Application

The Lone Star State likely will not legalize gay marriage anytime soon. There will certainly be no bills in the legislature this session, and probably not in the 2017 or 2019 sessions either. But this decision suggests that same-sex families may no longer be treated differently by juries, at least in urban areas.

At Welsh Law, PLLC, our focus is on helping all Texas families succeed. Call today for a consultation.