Elisa Reiter | The Role and Rights of a Psychological Parent

We’re excited to welcome Elisa Reiter of Underwood Perkins as our guest today on the Texas Family Law Insiders podcast. Elisa’s practice focuses on family law matters, including divorces, custody, grandparent rights, LGBTQ issues, and elder law issues.

We’re sitting down with Elisa today to discuss how state courts across the country are redefining the laws pertaining to a psychological parent. Elisa says, “Hillary Clinton taught us from the old African Proverb that ‘It takes a village to raise a child,’ and it does. Are there times that someone who is simply a psychological parent deserves to be recognized and deserves to have the status and court-ordered recognition when they step up and ask for it?” 

Today on the show, we discuss current and past psychological parent cases, including Middleton v. Johnson, 369 S.C. 585. More of these cases are being heard, so listen in to learn:

  • The paramount concern for courts in determining the rights of a psychological parent
  • Tests used throughout the country for determining if someone has acted as a psychological parent
  • Is the consent of one parent enough to determine that there is a psychological parent relationship
  • What about other parental figures such as nannies, foster parents, and grandparents
  • Special considerations for psychological parent relationships in the LQBTQ community
  • The status of the psychological parent in Texas
  • And more

Mentioned in this episode:


Elisa Reiter: We’ve got a balancing test in all of these cases. So it is a parent’s right to privacy and to make their own decisions in regard to their child. Versus the psychological parent coming in, who has forged a bond, and each court is going to have to weigh what’s it going to do to that child to now breach that bond that has been formed between the third party and the child.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Elisa Reiter to the Texas Family Law Insiders podcast. Elisa is a senior attorney at Underwood Perkins in Dallas, Texas. She graduated from SMU law at the age of 22. Very impressive, and is double board certified by the Texas Board of Legal Specialization in family law and child welfare. Elisa focuses her practice on family law matters including simple to complex divorces, modifications of child support and custody, including parental alienation and reunification cases, grandparent rights, child welfare cases, interventions, LGBTQ issues, elder law issues, as well as cohabitation, pre marital and post marital agreements.

In addition to her practice, she’s taught family law at SMU has chaired the Texas Family Law Exam Commission, and served two three year terms on the TBLS Board. She’s known to her clients as an empathetic Jewish mother who represents them zealously be it through direct negotiations, mediation, collaborative law or trial. Thank you so much for joining us today.

Elisa: Thank you so much for having me, Holly. I’m very honored to be here.

Holly: So why don’t you tell us a little bit about yourself.

Elisa: So my practice is devoted to family law with a smidgen of elder law mixed in. I represent folks who are divorcing. I represent folks who are vying for custody. I’m involved with cases that involve parental alienation, and reunification cases. And those are very, very hard cases. Typically, there is a natural progression into elder law issues, I think, from family law. I also do CPS cases. And, for instance, one of the things that I’m trying to work on and have successfully tried two cases on are matters that involve foster parents who are intervening in CPS cases, trying to obtain custody of children who have been with them for long term placements, so that they can turn around hopefully, and adopt those children and provide a safe, warm, nurturing place for them. Even though there’s no biological connection between the foster parent and the child.

Holly: So one of the topics that you mentioned as something that we could discuss today, which I immediately latched on to, was related to the issue of a, quote, psychological parent.

Elisa: Yes.

Holly: This is particularly interesting to me, because of my experience with CJC. And representing a lot of usually parents against non parents, fighting against the psychological parents, so to speak. So and I know you had co authored an article that was in Texas Lawyer in January of 2022, called state courts are refining the concept of psychological parents. What exactly is a psychological parent?

Elisa: So California looks to a de facto parent. And I think that’s much like a psychological parent. And in California, the idea of a de facto parent is limited to those adults who have had a, who have fully and completely undertaken a permanent, unequivocal and committed and responsible parental role in a child’s life. So they are participating in the child’s life, they are probably making financial contributions to the child. The child may be residing in their home part time, if not full time, so that there is a committed relationship. Here’s the catch all though. They can’t be doing it because they’re being paid to do it. So we’re going to not be looking for nannies or babysitters, or people who are in a paid position to care for the children, if you will.

So, so in terms of psychological parent, we’re looking for someone who has made that type of commitment to the child and who is stepping up. So the Wisconsin Supreme Court talked about this. And the Wisconsin Supreme Court came up with what we call a four factor test. And I know you’re familiar with this because you did brilliant work in re CJC against our esteemed colleague Michelle May O’Neil. And I think it was your first Texas Supreme Court argument, yes, for a 9-0 unanimous verdict. That was really awesome. I watched you and was delighted to see the professionalism that both you and Michelle May O’Neil displayed in the course of that very early Zoom Texas Supreme Court argument. So our four factor test is, one that the biological or adoptive parents consented to and fostered the petitioners formation and establishment of a parent like relationship with the child.

Two, that the petitioner and the child lived together in the same household. Three, that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child support, without expectation of financial compensation. And four, that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship that is parental in nature. So this is not going to be a short term deal. This is going to be somebody and we have no definition of time. Right? This is a case by case analysis as so many of our family cases are. It’s going to be dependent on the facts of each case as we go along.

So I think that especially, you know, we’re going to discuss several cases as we go along. But I think that especially when it comes to children who are in the welfare system, children who are in foster care, many children who post COVID are being cared for by a third party who is not biologically related to them. What’s going to happen with these kids, and how are those people taking care of those children are going to establish right to duties and privileges so that they can enroll in school. So that they can, those psychological parents do everything that they need to do to provide for those children. So I find it a very intriguing subject. I think that it is like alimony and maintenance years ago in Texas. You know, I’m old enough to remember when we did not have alimony and we snuck it through calling it maintenance, right.

So I think that we’re going to find this a developing area, in terms of having third parties stepping up to say, I have been there for the child. Just because I no longer have a relationship with another parent shouldn’t mean that that I’m precluded from continuing to have a relationship directly with the child and caring for the child. But we’ve seen it as recently as last night and now confirmed this morning. I’m sure that you’ve been watching your news feed as well with Dobbs versus Jackson that what the court giveth the supreme court, the court can taketh away. So we’ve had lots of cases having to do with equal protection. Roe versus Wade being one some time ago, that’s now being overturned. As to reproductive rights.

The 14th amendment has also been used in arguments like Bush versus Gore. As to election recounts. It’s been used in Reed versus Reed for gender discrimination. And it’s been used, and again, this was this was a hot topic when I was in school, the University of California versus Bakke in terms of racial quotas, and whether affirmative action was a good thing or a bad thing. So we have the rule of law, and yet we think of the Constitution as a living document. And the court has periodically as you well know reached to the 14th amendment to say, due process, equal protection, we need to expand the penumbra of protection to this particular case. And I think that’s going to happen more and more as we have more and more blended family issues for psychological parents.

Holly: So in going back to these four factors that you went through, in looking at the first one, the natural or adoptive parents consented to and foster the relationship. Though if we have a situation and we have mom and dad have divorced, they have a child together. Mom subsequently remarries to stepdad. Dad did nothing to consent or foster this relationship. Only mom has consented to this relationship. Right? Id the consent, let’s make the assumption also that dad’s perfectly, perfectly fit. He’s a good parent. He’s a good dad, right. Is mom’s consenting and fostering the relationship with stepdad. Do you think that should be enough to meet this prong?

Elisa: And the answer is it depends on the case. So I would say that we have a good example out of South Carolina in Middleton versus Johnson. In Middleton versus Johnson, this was a 2006 opinion. And basically, Middleton and Johnson, who was the mom had had a long term relationship from 79 to the early 90s. Each of them had two daughters by prior relationships. Each of them accepted one another’s daughters, they spent time at one another’s homes with the children. And typically mother would in fact spend from Thursday through Sunday at Middleton’s home with those kids. And Middleton with mom’s encouragement, spent lots of time with the girls. The plot thickens, while they had broken up by the early 90s.

Apparently they had what is described in the case as an intimate encounter in July of 1992 nine months later, Joshua Hollington was born. Now during the mother’s pregnancy, she told Middleton, you’re not the dad, my new friend, Eugene Hollington, is the dad. However, after Josh was born, and he was about three months old, mom takes a picture of the baby sends the picture to Middleton, and infers, it’s the eyeball test as we say in the law. This kid, this baby, looks just like you. At that point in time, Middleton wants to do the right thing. In fact goes for bloodwork, he is not at that time excluded as a parent of the child. So, Middleton with mom’s blessing, begins to spend time with little Josh. And he supported the child financially.

Ultimately, when Josh was about a year old, there was formal DNA testing. And guess what happened. Middleton is excluded as the father of the child, biologically speaking. But what’s happened? We have an old concept of adoption by estoppel. Right? And so essentially, mom says, you’ve been helpful to me, you’ve been wonderful with the child and guess what, biological dad is out of the picture. He’s done nothing. He has met the child one time when the child was days old. He has done nothing financially. He hasn’t visited. He’s not been involved and acted as a parent should. So mom is very happy at this point to have Middleton involved and treats him very much as a son.

And in fact, when Josh was three years old, mom lived in a home that was owned by Middleton. That happened to be right next door to Middleton’s dad. When Middleton would stop at his dad’s home to visit to help, the child would come over. The child would spend time with Middleton. When the child began preschool Josh and the mom, excuse me, Middleton and mom shared the costs of a private school. Middleton signed Josh’s report cards, he picked Josh up from preschool at least three days per week. They had a joint custody arrangement without going to the courthouse right. They absolutely cooperated when it came to this child. Notwithstanding the fact that there was no biological connection between Middleton and Josh.

So joint custody arrangement began to fall apart when mom starts up with a new boyfriend, and mother attempts to stop Middleton from having access. Middleton turns around and what did we find in these cases, Holly, but finances can make a difference. Middleton offers to pay all of preschool rather than part of preschool and guess what, mom allows access again. So they go on. When school starts, who’s the person who takes Josh to school the first day of kindergarten? And you and I know how important that day is right? Middleton does, not mom. Josh’s teachers from second, third and fourth grade testified ultimately at the hearing that Middleton attended PTA meetings, open houses, field trips and other school related activities and that for all a sensible purposes, they heard Josh address Middleton as dad and believed that he was dad.

We go on to third grade for Josh, mom begins to date someone and they become serious. And mom asks for a new schedule to accommodate her new boyfriend. So all rocks along until Christmas of 2002. Middleton was to have the child on New Year’s Day, January 1 of 2003. However, mother calls Middleton and says oh, he’s, she’s not going to bring them over because he’d been acting up and she had to punish him. When Josh came over the following day, he hugged Middleton and told him that mother had left marks on him by hitting him with a quote studded belt. Josh showed Middleton the marks on his upper thighs near his groin area. So Middleton’s concerned, he has seen acts of violence and physical abuse by mom in the past. He’s concerned that if he has if he reports this abuse, that mom is going to say, guess what, you can’t see the child ever again.

Middleton does discuss the marks that he observes on the child with the child’s school principal. Mom calls later the same day asking to speak with the child and Middleton says oh, he’s hopped in the shower. He’ll call you later. Mom calls back within minutes agitated, wants the child home now. And one can only conjecture that mom is very concerned that if the child hasn’t disclosed his bruises that dad will observe the bruises when he’s in and out of the shower. Both of these folks Middleton and Johnson each call the police, because mom has, so when the police arrive at Middleton’s home, guess what they have mom and her now new husband’s the old boyfriend with him. Mom has legal custody. Mom gets to take Josh away not withstanding the bruises.

One of the officers at the scene ultimately testified that she believed Middleton’s reason for reporting the abuse was true concern for the child and not to gain leverage. After that incident mom terminates all contact between Middleton and Josh. Middleton turns around seeking custody. So what does the family court do? Mom tries to dismiss the case out of hand saying there’s no biological connection here. Court doesn’t buy that in South Carolina. The court also steps forward, trial court and appoints a guardian to represent Josh. The court requires Middleton to join the biological dad Eugene Hollington. And however, while this investigation is pending, the trial court denies Middleton visitation. Middleton files an amended complaint joining Hollington and even though Hollington is joined, he never appears in the case just like he’s never had a part in the child’s life. He does not step up at that point in time.

The Guardian Ad Litem four months later files a motion seeking counseling for Josh. The child had been counseling with a certain counselor Dr. Kay Newman, the child went back to counseling with Dr. Kay Newman. And the doctor reported about six months later that she felt that it was very important for Middleton should resume contact with the little boy, Josh. She described Josh as a kind gentle boy whose primary concern was that Dr. Newman understand how much he loves Middleton. Talking about Middleton, taking him to church, boy scouts signing him up for and attending basketball league and other events. Ultimately, there’s always a discussion of standing and jurisdiction in every case. Middleton vs. Johnson is no exception to that.

And the appellate court in South Carolina specifically disagrees with the trial court, saying that there was error in refusing to grant Middleton visitation and part of the supreme the excuse me, the South Carolina court’s, the trial court’s rationale was Josh knows he has a biological dad, and he knows that biological dad is not Middleton. Now why should that make any difference at all? Right? This Middleton has stepped up and acted in the place instead of a parent, is loved as a parent, has made the financial contribution, the child has been in his house. Why should the child’s knowledge of another person being a biological dad make any difference at all? So there is discussion of what we’ve already talked about de facto parent. There is discussion of an Alaska case.

The Alaska Supreme Court, who which defines the psychological parent is a person who on a day to day basis through interaction, companionship, interplay and mutuality fulfills the child’s psychological needs for an adult. This adult becomes an essential focus of the child’s life. For he not only the source of the fulfillment of the child’s physical needs, but also the source of his emotional and psychological needs. The Wanted Child is one who is loved, valued, appreciated, and viewed as an essential person by the adult who cares for him. This relationship may exist between a child and any adult. It depends not upon the category into which the adult falls. Biological, adaptive, foster, or common law, but upon the quality and mutuality of, of the connection. So part of this, I think it’s very important for us to to look at whether or not there has been any biological parent involved, and has that biological parent invited this third party into the relationship?

We’ve had clients who come to us saying, can I date now? And can I, can I introduce this new person to the children? When can I introduce? I’ve already introduced this in person to the children, right. And sometimes, like during a pending divorce, not such a good idea. If it is case involving parties who have never married, is there a distinction in that kind of a case? So the South Carolina court goes through an analysis of the circumstances that are specific to Middleton versus Johnson, and basically says, this is the guy, this is the psychological parent, right? This guy hits all the criterion that have been established. And, you know, even though they may not have resided all together under one roof, they did reside together in their own fashion in what was a de facto joint custody arrangement

Holly: So that kind of goes back to the second factor there about the petitioner and the child having lived in the same household. And I wonder how much, like what percentage of time does the child need to live in that person’s household for it to qualify?

Elisa: We don’t have that definition.

Holly: You know, like, for example, in Middleton. Was Middleton having a kind of a standard possession order schedule, where he’s less than 50%? Was he even less than that, and just seeing the child occasionally, or do we have, you know, half the time, where?

Elisa: It’s sounding as though he lived close by. It’s sounding as though the child had spent from Thursday until Sunday. But it also sounds as though Middleton was the person who was not only taking the child, ultimately to school, but picking the child up from school every day. So there was daily contact for this man. And basically, we’ve got a balancing test in all of these cases. So it is a parent’s right to privacy and to make their own decisions in regard to their child, versus the psychological parent coming in, who has forged a bond, and each court is going to have to weigh what’s it going to do to that child to now breach that bond that has been formed between the third party and the child, right. So again, time duration, we don’t have a mathematical formula, right? This is not like splitting up a retirement account. We don’t have that math. Now that may come by legislatures over time, giving us more direction. But right now, we don’t have that other than to say, have they lived together in some fashion.

Holly: And I can see, you know, going back to point I brought up a while ago about do both natural or adoptive parents need to consent. Now in Middleton, we have really only one parent that was involved and actually in the child’s life. I think most people would agree that the absentee father, biological father really shouldn’t get a say in this. And it seems like logically the right decision to have this de facto parent who mom chose to play the role of dad to this child for many years, that he should get to keep that relationship and the child should get to keep that relationship. But if we’ve kind of tweaked the facts a little bit, if the biological father had been involved or wanted to be involved all along, and mom wasn’t allowing that, or it was through mom’s actions that mom chose Middleton instead of biological dad. Does that change the analysis?

Elisa: I think it depends on the overall circumstances. So playing off of your hypothetical, if you will, I’m sure through the years that you, as I have had a case where I’m going to pick on the dad for just a minute this it could just as easily be a mom. But let’s say there’s been a divorce. And let’s say a stepfather has come into the fold and is very good to the child. Let’s say that whenever on the rare occasions when biological father does call and stepdad happens to answer the phone, dad says, can I speak to my wife, please? Now mom is no longer wife to dad. It is an irritant. It is absolutely trying to aggravate and exacerbate the circumstances. Sometimes we are fortunate enough with blended families to have folks who prioritize the children and absolutely serve their best interest.

Sometimes we have people who want to fight tooth and nail and try to reject that new person in the child’s life. A little bit different when it comes to that psychological parent because by definition, the court is saying this is a person willing to step up and assume this responsibility should have some kind of continued contact. Now, all of these cases, as you know Holly go back to the grandparent, the infamous grandparent case, and that was Troxel versus Granville. And in fact, in Middleton vs. Johnson, the South Carolina appellate court talks about Troxel versus Granville. And essentially, just to remind our listeners Troxel versus Granville, involved grandparents, who were trying to seek access to their granddaughters. Their son had had a relationship, and with Ms Granville, Tommie Granville.

And, sadly, the couple not only separated, but the Troxel’s son ultimately committed suicide after separation. And so initially, everybody got along, there were visits. And then mom began to say, guess what you can’t visit as often. I’d like for you to see them, you know, during the day, maybe one day a month. And the grandparents basically said, we live in Washington State. Washington State has a new statute that says any person can seek access at any time, for visits if there is some type of relationship and we fall into that category of any person. And we want to be able to see our granddaughters. And again, we’ve got that balancing test of privacy and a parent’s right to say, I don’t like these grandparents, I don’t want them around my child, which happens every day as we don’t well know, sadly.

It is also possible for a court to intervene in that type of scenario and say, wait a minute, a grandparent or parent aren’t the same, there ought to be some access, but not necessarily what a parent would be entitled to. So this was a statute that was so global in Washington State. The United States Supreme Court ultimately ruled that that you had to still pay attention to whether or not you had a fit parent involved. So the grandparents had not alleged that Granville was an unfit parent in Troxel versus Granville. It was presumed that Granville was acting in the best interest of her children. The trial court didn’t give special weight to Granville’s determination of what was in her children’s best interest. Third, Granville had not cut off those grandparents entirely. It was a plurality opinion.

And they kind of flaked on us in Granville in in Troxel versus Granville, the United States Supreme Court, because they did not consider whether the due process clause requires all non parental visitation statutes, to include a showing of harm or potential harm to the child as a condition preceded to granting visitation. And again, the Supreme Court further explained we do not and need not define today the precise scope of the parental due process right in the visitation context. So the South Carolina court in Middleton vs. Johnson distinguishes Troxel on the facts, and basically says Troxel versus Granville turns on the constitutionality of the State of Washington’s very liberal visitation statutes, and has little bearing on these very unique facts that the South Carolina Court is grappling with.

Ultimately, you know, they look at the full record. There is a guidance counselor who says that she sent Josh off to grieving therapy. He simply was not himself in that period of time that Middleton was cut off. So he went off to a support group. Mother’s grown daughter testified, saying that there was a very special bond between Middleton and the child, and that the child was not the same happy person he had been prior to Middleton being cut off. So there was testimony from teachers, from counselors, from the ad litem making a recommendation saying, I’m no counselor judge, but I can see there’s a special bond here and I can see this child grieving. And I think that there needs to be something done here. And we’re not even touching whether whether mom is fit or unfit.

We’re simply looking at that bond that should continue between the psychological parent and the child. So the South Carolina court cautions the decision does not automatically give a psychological parent, the right to demand custody in a dispute between the legal parent and the psychological parent. The limited right of the psychological parent cannot usually overcome the legal parent’s right to control the upbringing of his or her child. When is this going to come up? So many of our other cases in cases discussed in that article that you kindly alluded to when we started deal with LGBTQ couples, right? So we have relationships where folks might have had a commitment ceremony, but no formal marriage simply because they got together as a couple before the Obergefell decision, right.

But perhaps one person is named on a birth certificate for a child and not the other person because it’s a gay or lesbian relationship. I can tell you that many years ago here in Dallas, I had a case involving a gay couple. One of the dads was killed tragically in an accident. That dad, the deceased father was the only parent named on the children’s birth certificates. And there were three children. Now, the whole time, this couple has been parenting together, right? They have shared all duties regarding these children. And yet, the surviving father has nothing to take to a school, nothing to take to Social Security to get benefits for those children. Nothing to assert the children’s rights to be able to protect them through the probate process when the deceased dad’s will is probated, etc.

So he was furred to me. And we actually appeared before another colleague of ours Merilea Lewis many years ago. And I’m here to tell you there was not a dry eye in the house as I presented testimony that I elicited, and not only from the surviving dad, but from the, I brought in the deceased dad’s parents. So the deceased dad’s parents absolutely verified that the other father was there from the get go, loved these children, participated daily, was a parent. And I guess we would say what a psychological parent in this context, even though we didn’t have that verbiage at that point in time.

And that he should have standing to be named a conservator and to be able to make decisions regarding those children moving forward. And as we told the story of the circumstances of the death of the deceased dad, the one whose name was on the birth certificate, I promise you, there was not a dry, the court reporter everybody in the bailiff, it was a very sad set of circumstances, very unexpected death. And the judge granted the relief requested. But again, I think that these cases are facts specific. And in terms of getting a bright line rule for folks coming to us and asking, do I have standing? That’s a hard question. And it’s case by case every time.

Holly: Well, and a lot of what we dealt with in CJC, was the distinction between standing and the right to relief. And there are definitely statutes in Texas that give people standing, who have no hope of having a right to relief in light of CJC. Right for 102.003a9 and 102.003a11 were the two statutes that were at issue in our case, I actually thought that we were going to have, end up having a dispute over the constitutionality of a11.

Elisa: Did you really? I’m picking up my Bible, I had I had marked it, I expected you to go there. So for those who might not know 102.003, subsection a11 says that a person might have standing if they are a person with whom the child and the child’s guardian, managing conservator or parent have resided for at least six months, ending not more than 90 days preceding the date of filing of the petition. If the child’s guardian, managing conservator or parent is deceased at the time of filing of the petition. So you had a case that was facts specific with CJC with mom and dad being involved in a modification and while the case was pending, am I correct mom died in a motorcycle accident?

Holly: Correct.

Elisa: And her fiance stepped forward saying the kids have been with us. Give us a you know, give me the opportunity to continue to care for the children and your client will was the bio dad, right?

Holly: Right. And from our perspective, we didn’t think he met the actual care, custody and control requirement of a9. But he very clearly met the criteria of a11, which didn’t require anything other than to be living in the same home. So I kind of thought that’s where it would go. It didn’t. Obviously, it went a very different way. But I think looking at those standing statutes that have only six months as a requirement, and just being in the primary residence for six months. Well in the predecessor to CJC, which was in re Clay, we argued that that should be the collective total of six months, not calendar six months when you’re splitting custody.

Because really, he’d only been with, he’d been with in the home with the child 54% of the time, over 10 or 11 months. So if you add that up, it was not six months. And the court said, no we’re just going to look at the calendar. So if you have, you know, three, three months, in a day of six months, you are going to meet that criteria. And I feel like that’s a really short period of time in which somebody, I don’t think you can develop a psychological relationship with a child as a psychological parent in that short of a window.

Elisa: Let’s flip that for just a minute. Now, when you and I have child custody evaluations, or we have evaluations in the context of an adoption, social study or child custody evaluation, typically, we’re going to give that evaluator what period of time. In a perfect world, we’re going to ask them to get done in a six month window of time, because our courts seem to think that that gives us enough time to see whether the child is stable in the home. And I think that’s the counter to that argument. You know, it’s we’re you and I are in an Annie Hall moment, right? It’s is six months enough, versus six months is a long time. So the idea is that, you know, can somebody maintain equilibrium, when they know that they are under the microscope, under the magnifying glass during that six month stretch of time? Or are they going to mess up and show that there are issues that there are addiction issues, that there are family violence issues? So again, I think it’s fact specific depending on the case.

Holly: And I also think there’s a big distinction between the case that you mentioned that you were involved with where you had a gay couple and one of the fathers dies. So there’s no other parent out there that is claiming to being a parent of this child. Distinguish from a situation like CJC, where we had another parent there, so when that third party comes in, they have third party against a fit parent, as opposed to only a third party.

Elisa: Right. But we have unfortunate circumstances with for, we’ve already talked about a gay couple. Cook versus Sullivan came to us out of the Supreme Court of Louisiana. And there we had a lesbian relationship that began cohabitating in 2002. They had many failed attempts at artificial insemination. The couple was Sharon and Billie. Sharon gave birth on December 31, 2009 to a child quote conceived naturally through intercourse with a friend and co worker, David Ebarb. No father was listed on the birth certificate, the child was given the hyphenated last name of Cook-Sullivan. Sharon, Billie and the child lived together until they separated in 2013. So there was a four year stretch, a little bit under a four year stretch of of living together.

Sharon and Billie did not have a marriage, they did not enter into a domestic partnership. And Billie did not formally adopt the child. And I think that this is going to continue to be an issue in in cases for the LGBTQ community. And I think that if we have the idea of we have to show the other parent is unfit. That’s not a fair standard for somebody who has been involved in the child’s life throughout their life. So basically, the court looks at an evaluation from the trial court. Again, we had a PhD counselor Dr. Shelley Visconte, who was asked to prepare an evaluation. She was asked to supplement her evaluations. The trial resumed after a second report was submitted.

They had the benefit of testimony and evaluations from a licensed marriage and family therapist who had been retained by Sharon to counsel the child for emotional issues that the child was experiencing at the time. So what’s gonna happen in our cases, right? When somebody wants to block access, they’re going to say, there’s a problem here, right? The child is reacting to visits, the visits are not good for the child. You know, what can we do to assure the child’s safety and wellbeing? So I love this, that in Louisiana, they don’t say decree in those parts. They apparently issue what’s called a considered decree. I love that.

And so, the trial court issued a considered decree, in which it recognized Billie is illegal parent of the child, held the failure to reestablish the parent parental relationship between Billie and the child would result in substantial harm to the child and awarded Sharon and Billie joint custody of the child was Sharon designated as the domiciliary parent. So they didn’t look at Billie as a non parent. They held they went to this sort of four point standard that the parties had entered into and engaged in assisted reproduction voluntarily and jointly planned resulting in the birth by one of the parties, that the parties resided in the same household before and for a substantial period of time after the birth of the child, sufficient to form a parental bond. And again, it was over three years in that instance, the non biological parent engaged in full and permanent responsibilities and caretaking of the child without expectations or compensation.

The non biological parent acknowledged publicly and held herself out to be a parent of the child. Well, the law is not always fair. And in that instance, there was an assisted reproduction statute that really was phrased and presumed that it would be a man and woman seeking to to make this baby via IVF. And, and essentially, the Court of Appeals reversed, saying that Billie, for all ostsensible purposes, was a non parent and had no standing, had no right to custody, should be cut off from the child. So it’s sort of a what ex post facto, even though this statute, talked about a father stepping up and filing this document that was much like a declaration of paternity, that you should forget about the fact that it talks about a man and, and you Billie should have known after Obergefell, that this was to be read in a gender neutral fashion, and that you should have done everything that the statute talks about doing.

And since you failed to do those things we’re not going to give you access to the child. The paramount concern for the Louisiana Supreme Court is the best interest of the child, it should be the paramount goal in all custody determinations. But again, we’re going to have unfair results, I think, depending on who’s on the birth certificate, who carried that child if you have a lesbian relationship, right. And and the law is often used as both sword and shield, is it fair in those relationships? And for those children?

Holly: I think in Texas, obviously CJC kind of left open a lot of questions about where does the parental presumption or the fit parent presumption where’s the line to overcome it? I think it also doesn’t address kind of someone who had was more of a true psychological parent than we had in that particular case. I know there are two cases out there pending right now that could give us a little bit of an answer. There’s a case pending in the Texas Supreme Court now that have been denied, the decision had been denied by the Supreme Court and they just granted reconsideration and have ordered full briefing. And that case was in the interest of SK and LK which came out of Corpus Christi.

And that came out right after, right at the same time as the CJC opinion out of the court of appeals. Where the court of appeals initially ruled in favor of the non parents and CJC came out the next day I believe, and then they all on their own reversed and came out in favor of the parent. In that particular case the court determined that the non parent, or the court of appeals found the trial court abused its discretion in awarding possessory conservatorship to a non parent over a father’s objections. The court determined that the non parent did not overcome the fit parent presumption as to the father and a CPS case where both parents were ordered to complete services, the child had been placed with the intervening non relative for more than 12 months, and the department had been named as a temporary managing conservator.

So I think it’ll be interesting to see that’s obviously a CPS specific case. Interesting to see how the Supreme Court ends up ruling in that one. I also have an appeal pending in the 14th court of appeals, where we have a same sex couple that did not get married, did not have an adoption by the other parent, and the trial court named biological mother a sole managing conservator and her former partner as a possessory conservator. It will be interesting to see how the court of appeals comes out in that one. In June, in that, so probably be end of the year before we get anything back on it, but definitely cases in the pipeline, and it’ll be interesting to see where it all shakes out in Texas.

Elisa: Well, I think that we’ve we’ve got to recognize the fact that our census did not include information on same sex parents until 2019. And what we know is that the current population survey in 2019 showed that there were 543,000 same sex married coupled households, there were 469,000 households with same sex unmarried partners. And we’ve got to compare that to the fact that there were, as of 2019, 61.4 million opposite sex married and 8 million opposite sex unmarried partner households. So while you know, were those statistics accurate, did people step up and truly come out and identify themselves in the course of that census? Do we have real numbers yet?

And again, we’ve barely touched on, as you allude to in that second case, it may be CPS specific, but I think it’s really important for us to have a ruling in that case, what’s going to happen for foster parents, for all of these other folks who are not a blood relation. Hillary Clinton taught us that, as the old African proverb says, it takes a village to raise a child. And it does, and are there times that somebody who was simply a psychological parent deserves to be recognized deserves to have the status, and court ordered access and possession when they step up and ask for it?

Holly: Well, I will definitely be interesting to watch what happens in the coming years in this area. Well, we’re just about out of time, but one of the things I like to ask everyone who comes on the podcast, is if you could give one piece of advice to young family lawyers, what would it be?

Elisa: Be a zealous advocate who has empathy. It’s not just about the case, it’s not about the finances. It’s not just about the aggravation. Our cases are very time consuming, and where we’re asking folks to devote so much time, especially now with these new discovery rules and initial disclosures and so forth. We asked them to devote so much time to us and to answering our questions, that we’re pulling them away from their kids and the need to take care of their kids on a daily basis. And I think that we can be zealous advocates, but we have to be respectful and we have to be civil. And by all means those young family lawyers got to remember to have a smile and a sense of humor every day, to not get lost in the process.

Holly: Where can our listeners go if they want to learn more about you?

Elisa: They can, so I have had the privilege was with my colleague, Professor Daniel Pollack, who is a teacher at Yeshiva University professor of writing about 60 articles over the course of COVID. Our articles have been posted to www.researchgate.net. So if you want to read some of the articles we’ve done on family law related matters, CPS related matters, elder law matters, you can flip over to www.researchgate.net and simply plug in our names and those articles will pop up. I, after many, many decades, on my own as a solo practitioner, I’ve had the privilege of joining the firm of Underwood Perkins, last June. I’m coming up on my first year of the practice here despite being a gray haired lawyer and to reach me here. My email address is [email protected]. And of course, the webpage is underwoodperkins.com.

Holly: Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.

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