Transcript

Christine Andresen: So your most secure LGBTQ+ parent is someone who is either the biological parent of the child or has a court order.

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 I’m excited to welcome Christine Andresen to The Texas Family Law Insiders podcast. Christine is the owner of CHA Law Group in Austin, Texas. Christine, who thought she would grow up to be a rock star and was a varsity fencer in college, is now a family lawyer and a married mother of three. Her firm focuses on helping the LGBTQ+ community in various aspects of family law.

She’s represented LGBTQ+ clients in divorces, parents of trans kids in SAPCR modifications, trans children as an attorney ad litem, and scores of trans adults and children in changes of name and legal corrections of gender. Christine regularly speaks about LGBTQ+ issues in family law at local, state, and national conferences. Thank you so much for joining us today.

Christine: Thanks for having me.

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

Christine: Well, you got a lot of the key bits. Let’s see I have two poodles also. I’m a family lawyer, I’m a reader. Go to a lot of plays. But it’s Austin. I live in Austin. So I go to a lot of not as much as I used to live music. But yeah, I’m also just like a big geek. I help people make babies and do a lot of reproductive law.

Adoption law is a chunk of my practice as well, but I help LGBTQ+ families. My friend Bill in New Jersey says womb to tomb, sperm to worm. Just a variety of family law issues that people have, or I try to refer people out if they come to me with something that we just don’t do. Like employment law or criminal or something like that. It’s a big chunk of my practice. LGBTQ+.

Holly: So how long have you had this focus on helping LGBTQ+ clients?

Christine: I mean, I remember, it was maybe late 2006, early 2007 and I was making my first website. And I was like, do I do a tab? Do I mention that on my website? And every single person in the state who specialized in LGBTQ+ family law didn’t say so on the internet, which I thought was weird.

And I was like, well, I’m an Austin. There’s probably enough like groovy, hippie, straight people who won’t care. And if I don’t get, you know, maybe because of my focus, you know, I don’t get some rich lady and Westlake as a divorce client, but we probably wouldn’t get along that well anyway, so it’s fine.

So yeah, just from the start, I was like, well, I’m interested in this. I go to all the CLE there is on this in the state. And, you know, some nationally. That started later, going to the national conferences, but I just decided to say I did it, which turns out to be good for SEO. So it was a good business decision. It was just a little bit scary at the time, though.

Holly: For sure. I’m sure you’ve seen things evolve quite a bit in that now almost 20 years.

Christine: Yeah.

Holly: So you touched on this a little bit already, but how would you describe your current practice?

Christine: I would say it’s about a third reproductive law. Meaning surrogacy, adoptions, other kinds of interesting ways three people make babies. Sperm donor, egg donor, embryo donation. Sometimes it’s four people. And then about 10% is maybe five to 10%, you know, goes up and down of helping trans folks do change of name, correction of gender identity. And the rest, tiniest bit of CPS.

I have one, I guess if you look at my hours, it’s more. I’ve currently one CPS case. But it’s a doozy. And so, I’ve pretty much stopped doing that. Although I have a lot of experience doing Child Protective Services. The remainder I would have to do some math to figure out the remaining percentage, but a chunk of my practice is just regular old family law. Divorce and custody work.

Although it tends, I have a tendency to be representing a trans person who discovered their trans later in life and their spouse didn’t realize they were married to a trans woman and would like a divorce. And somebody’s gay, somebody’s queer, LGBTQ+ in some way, in my family law, but I tell people I will help your straight friends get divorced too. I have a few clients that are just regular old opposite sex gender divorce. So it’s a variety.

Holly: So today we’re here to talk about a few different LGBTQ+ focused legal issues specifically related to family law. And the first one I wanted to just touch on, because I see so many lawyers , like in the Texas Family Lawyers Facebook group, asking questions about this topic, and that is the gender marker change. Can you generally explain that process?

Christine: Well, that is one of the few areas where I’m delving outside the family code. It actually turns into the Texas Health and Safety Code. Where there has to be some procedure to correct a birth certificate, to amend a birth certificate when there’s an error on it. I had a client cisgender. And just for anyone who’s not familiar, cisgender means you are not transgender. Like the body parts you have are the body parts that match your internal conception of your own sex or gender.

So you are not a trans person or non binary person. So cisgender guy, male body parts, feels like a guy. Male, male, male. Had an it’s a boy bracelet or something his mom had saved from his birth in a baby book. But his birth certificate said female, right? So I think everyone would agree, there needs to be some way to fix it when doctors goof birth certificates. We do it in adoption a lot as well, where we amend birth certificates to match adoptive parent’s name.

And that is the like fairly accepted use. And name change. Name change isn’t always for gender reasons. Some people just never liked the middle name, didn’t get a middle name and what to honor a relative or you know, there’s huge numbers of reasons. Lately with the Real ID requirements, people are finding that their birth certificate has some slight variation from their driver’s license, people who are 50s and above, they weren’t always like making sure everything matched perfectly way back when.

And so some folks have to amend their birth certificate to make everything match to renew their driver’s license. So there’s these procedures to fix problem birth certificates. And so trans folks are using that to amend to their correction of name and their chosen gender. So we do a name change, correction of gender, under the terms where we can correct birth certificates.

The most important thing I can tell other practitioners is, unless you are personal friends with a judge who you know is open to this, the easiest way to do this is to do it in Travis County. Travis County judges have decided that as long as the person either lives in Texas or was born in Texas, that that’s enough to hang their hat on jurisdictionally. There’s a Texas birth certificate, or they live in Texas now, then they will do them for folks statewide.

My friend Claire, who is smarter than I am and published a lot of papers on this topic, calls it permissive venue. I was calling waiver of venue for a while. I think either way works. But the Travis County Law Library has forms to do this. People can call me if they have questions along the way. You know, you need your fingerprints. That’s a requirement of any name change, it’s just a statutory requirement, and a doctor letter is what the judges like to see.

So we do an affidavit or an unsworn dec under penalty of perjury, and we do a doctor letter, and they have a fairly standardized way of doing it. When you are working with a local judge who is well meaning but hasn’t done this before. You are much more likely to need to have an in person hearing with a client, explain the law to the judge, you should look up a paper by Claire Bow, B o w, you can email me and I’ll send it.

If you want an educated local judge, who can do it. But if you want to take a pro bono case for a friend an educated local judge, and your friend is willing to go through that process, because they just want the fastest and easiest way. The Travis path is a well worn path. There’s some issues around name changes and criminal history. If folks have a high enough criminal history, they’re gonna finish you. But that’s just true anywhere under the law.

Holly: So you mentioned the Travis County Law Library having forms. Are those available online?

Christine: Yeah, if you just Google Travis County Law Library forms. Yeah, they have a few things different than what’s on Texas Law Help, and that’s one of them, is the gender correction paperwork.

Holly: And I would encourage attorneys who are thinking about doing this in their home jurisdiction to not for the most part. I mean, I had an experience. It wasn’t with a gender marker change, but it was just with a name change for a transgender teenager. And that Judge, I mean, I have never been more mortified of how that Judge behaved and treated that family.

Christine: If you’ve got someone under 18, I would know the judge personally before you bring a client and a child to someone that’s not going to treat them well. Yeah, I mean, you know what, though, I had lunch with the judge, a friend of mine grabbed me at Advanced family and grabbed some judge from some county near but not in San Antonio. Somewhere more rural than suburban. And he was lovely.

He was telling me some friend of his had submitted to Travis. He was like why didn’t he come to me? I would have done it. And his friend was like, real country, but was like, you know, better a happy daughter than a dead son. So sometimes you would be surprised that I think some of it is age, sometimes younger judges are better on these issues than we think. But yeah, don’t bring a kid before them if you’re not sure.

Holly: I probably wouldn’t take an adult before them if I wasn’t sure either.

Christine: I mean, make sure your client is like, yes, let’s like, work on the local judge and try to change the law here. And I want to be an activist and participate in that. Or if you’re just like, do you want to get it done with a minimum of fuss, you know. So as soon as I feel like the lawyers like, oh, I know, the judges here, it’ll be great. I’m like, does your client want to do that, though? And some clients do. Some clients are willing to do that. But I think that should be presented to them as an option.

Holly: Okay, so switching gears a little bit. I wanted to talk some about issues in divorce that are specific to, or unique to dealing with LGBTQ+ or opposing parties, I suppose. So talk a little bit about the importance of understanding and using proper technology. Not technology, terminology. So talk to us a little bit about the importance of that.

Christine: I think the most important thing is just being polite. Which seems like it should come easily, but not always. You know, and so with that, especially if there’s a trans person involved in the case. Like my client, on the other side, just checking in on pronouns. And I know that drives some people crazy, and it can be really hard if you have a client talking in your ear and saying, my husband and him and using a guy name.

And then you have me as opposing counsel talking in your ear and saying her and she and using a female name. Just say petitioner, just say respondent. Like the absent minded judge who can’t remember anybody’s name, you can at least bring it to neutral, which will aggravate me and the client less. I remember telling an opposing counsel, it was very well meaning.

I don’t know if you’ve realized that every time you say he, you’re aggravating me. And if you want to, that’s fine. I’ve dealt with plenty of opposing counsels, who had every intention of aggravating me every time we talked. But I don’t think you intend that. So can you just say petitioner? Just being really careful when you realize someone is transgender, how much dysphoria and distress you can give to the opposing party by not using.

At least if it’s going to drive your client crazy, just use the gender neutral. Just petitioner, petitioners. Their pronoun is petitioner apostrophe s. So that can go a long way as an opposing counsel. I think you need to be really aware of your judge. There are certain cases where it would be a really bad idea to go before the court and it would be a really good idea to settle.

If you’re representing a person who is out and proud and LGBTQ+ and you are in a ruby red rural county with a judge who is socially right wing. And just because they have an R after their name, there are some libertarian judges in Texas who are you know, they run as Republicans, but are very live and let.

They might get the pronouns wrong, but they are very, you know, if they wouldn’t want to hear about the sex life of the straight person, they don’t want to hear about the sex life of a gay or other LGBTQ+ person, right. So you can’t make assumptions. You need to ask around. But there are some judges that you would rather not put someone from that community before if you could possibly settle even if it’s not the most favorable settlement. It could be better than having your client abused all day in court.

Holly: Yeah, I’ve seen, you know, I live in a pretty ruby red county myself and have seen attorneys who have a case like that, where they have to request jury trials because it can’t settle and is a jury any better. I don’t know. But they know what they’re gonna get.

Christine: If they know the judge is just gonna do everything to harm their client. A jury is at least a wild card. And the nice thing about voir dire is, I’m from the north, so I say it the Frenchie, the French-esque way. The nice thing about voir dire is during jury selection, you can select out people who are the worst bigots, right? You can be like, you can get some people for cons, if they feel strongly about it.

And then you can use your stripes on like, the ones who are like kind of, you know, a little too much Fox News, but they say they can be fair. So you ended up with your jury as a more neutral, at least like the middle of that county, not the furthest right of that county that you’re in. I mean, it ain’t free. You’ve either gotta give your clients some low bono or have someone with serious money, who understands how bad the judges and dollars they’re fighting over worth it.

Or you’re like, jury trials are fun, I’ll give you the day of jury selection for free and charge what I charge you. There’s financial considerations when you’re a solo, small firm. Even if you’re a pro at one of the big firms, which for family law is 10 people. You’ve got to think about the money too. You can’t always do a job. Sometimes it’s better to settle a bad settlement.

Holly: Agreed. Okay, so are there anything, any specific extra intake questions or issues that should come up in an intake if an attorney is meeting with an LGBTQ+ potential new client?

Christine: I think, so there are two major issues which come up, which are, come up sometimes in opposite sex relationships, but are more frequently bigger issues in same sex divorce, which would be parentage issues, and then informal marriage issues. And I’ll talk about informal marriage first, because it’s a little bit, I mean, it’s, we could do a whole hour just on that. But I tend to ramble on about the parentage stuff longer.

So for informal marriage, one thing you want to ask is, you ask their date of marriage. But then you also want to make sure to ask, I would advise this for opposite sex couples, too, but how long were you together? And how long were you together in Texas? Because what you could have is a situation where one of them, usually the poorer person, claims the date they moved in together in Texas as the marriage date, versus the date of formal marriage.

And that can get at a larger share of community property. It’s generally why the person would bother to have their lawyer do that. And then because there were some people who got married, you know, who are in Texas now who got married pre Obergefell, like you could do it in Massachusetts for about 10 years earlier. You could go to other countries, you know, people got married in Canada.

So California, you know, there are people who either got married somewhere else, and then moved here or lived here went somewhere else to get married came back here. So there are people with earlier marriages, but it’s just more common because of this Obergefell bright line 2015 for people to have let’s say a 20 year living together in Texas period, and a shorter marriage period, formal marriage period at the end.

So there’s room for an informal marriage claim, depending on the facts. And the Texas Supreme Court hasn’t yet ruled in but the trend seems to be in appellate courts to saying informal marriages can go retroactive pre Obergefell. There’s a federal court case applying Texas law. Rannells, which came out pretty shortly after Obergefell. I think it’s two ends in two L’s but I would have to look up that in my own paper.

I don’t remember the spelling. And then there are starting to be some cases applying that. But just be aware, it’s not totally established, there’s going to be some persuasive precedent, but you’re not going to, in every jurisdiction in Texas, find something definitively binding on the court, that they have to go retroactive pre Obergefell. So there’s some room for settlement there.

Holly: I think that’s a really interesting, unique issue to same sex divorce cases. Because if we’re dealing with a heterosexual couple, who lived together for many years, and then they had a formal marriage, we definitely do not consider that pre formal marriage as an informal marriage.

Christine: You can, there’s some case law. The case law is actually opposite sex couples. Called tacking. So it can be done. For same sex couples, it’s usually like maybe you have like a one year period tacked on to like a 20 year marriage. Like they don’t often live together for 20 years, and then be formally married for five. It tends to be where the dollars are worth fighting about it in court and then appealing. But there have been some.

There are a couple of appeals saying that it can be done in opposite sex. Or same sex. I don’t know if there are any, if there is any, same sex case law on tacking yet. But there’s clear case law on it for opposite sex couples. So it’s just not as common in fact set and it’s not as common that the time period was that long. So it’s not one I’ve seen as much for opposite sex couples.

But the other thing to ask people is just check out if they, some people collected, like, they got a domestic partnership here, and then a marriage in Canada. And like, if people collected, you know, you could theoretically have gotten a civil union in Vermont, and then a domestic partnership in the Pacific Northwest and then come and gotten married.

And so ideally, it was all to the same person, you might need to call a specialist like me in the state if they have an old Vermont civil union that they never undid or dissolved. But if it was all to the same person, I have not had issues if we throw in like and by the way, the California domestic partnership is dissolved.

And I’ve successfully thrown that into a divorce and also to a SAPCR where they were agreed they were unmarried, but they had a kid together. So Texas courts have jurisdiction to do that if everyone is in Texas, because nothing in the family code says they can’t. I think it’s more complicated if they’re not from Texas.

But I’ve never had a situation where they were breaking up and doing either a divorce or a SAPCR and someone was like oh, and by the way, let’s undo that prior relationship from the prior state. And the other person said, no, I want to be divorced but still have our civil union or domestic partnership. So I’ve always had those be by agreement.

At least, if nothing else, they can agree to be unpartnered or unioned. It’s something else to keep an eye out. It can have what is the Pacific Northwest states had something for domestic partners where if they didn’t say they didn’t want this that automatically converted those all to marriage, which would be a really good thing to know if your client was accidentally bigamist to try and help them unwind that.

So it doesn’t come up for everyone but it comes up some just because not everywhere did gay marriage instantly. Some people went and created this middle status in certain states. And they’re still around in certain states although I think they’re going away. Extra question. Extra intake question.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton, and Dallas counties and appeals across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So what about a divorce that involves a transgender party? What types of things should attorneys be considering that are unique to that type of situation?

Christine: It depends. So I think one of the things to be most, Holly and we should go back and talk about parentage some more.

Holly: I’ve got that down further. We’ll get there.

Christine: Ok. For trans, first, I think it depends. So if you’ve got, sometimes the thing you need to be most aware of is the emotional dynamic. So if you’ve got a marriage of a long period of time and a trans person in their 50s 60s, who’s just realized that they are trans and their spouse had no idea, then a lot of time that spouse feels dumped. Even if they’re the petitioner, even if the transgender person is like we could stay married, if you want to.

Sometimes the spouse is like, I did that sign up for that. I like men, and you’re telling me it, you know, even in the most progressive circles, you’re allowed to be attracted to who you’re attracted to. I like men and you are saying you’re a woman and doing things to make yourself look and act more like a woman. And I am not attracted to women, you know. So even in your most progressive circles, you’re gonna have issues there.

And some people stay. I think those spouses are the most amazing spouses of all. They’re like, I just love you, no matter what. But that’s not in the cards for everyone. So if there’s more right wing feelings or disapproval of gender, what the spouse is going through can be devastating to that person. Which as family lawyers, we deal with in a lot of contexts, but it’s just important to be sensitive to that.

Now, the trans person can also be going through an emotional journey. But often, by the time they’ve decided to come out to their spouse, and they’re talking to a divorce attorney, they’ve often gone through a lot of it. So they’re often like they’ve gone through their stages of grief, by the time they’re talking to you. Not always, but it’s just, it’s good to know the dynamics. I had a divorce where my client, I think she called herself queer, possibly a lesbian.

And she had kind of known that her partner was thinking about transitioning when they started dating. And so then when he transitioned, she gave it a shot for a while. And then finally was like, yeah, I like women and you’re a guy now. So the dynamics there, she had always kind of known she’d been willing to give it a shot going into the relationship. It was just so much more amicable than someone who had been in a relationship for decades and felt very taken by surprise.

Like, did you ever love me? Was I always just a beard? So, you know, when everybody’s queer, it can be emotionally easier for clients. So issues are not so much legal issues. But the kinds of things that come up with opposite sex couples as well. Like if someone’s going to start to date, and the partner is like, oh, I am nowhere near cool with that. You can get into adultery, allegations that affect community property, but it’s more just oh, gosh, don’t start dating yet.

You’re gonna cost yourself 10 grand more, 50 grand more in hurt feelings fees you know. So it’s more of like family dynamics and understanding the situation and understanding advice, like please don’t start dating yet to give clients that sometimes they listen to. And the legal issues, I guess, you sometimes see, you could see a waste claim around gender treatment, medical treatment.

So that would be the sort of thing that wouldn’t get you very far in front of a judge in Austin. You know, if you have gender dysphoria, and you have a counselor recommending certain medical treatments, if you have a medical doctor recommending medical treatments based on a diagnosis of gender dysphoria, that’s going to be seen as a medical treatment in some counties. But you know, a judge who would treat a cisgender female’s like boob job as waste might not feel so differently about a trans woman’s plastic surgery.

So which, you know, the waste claim is in the eye of the beholder. So, that’s something that can come up, depending on the relationship dynamics. So you can see some waste claims, you can see maybe an adultery claim. But these are issues that people experience in opposite sex divorce should be vaguely familiar with.

But if they get complicated, like, you can give me a call. I’ll talk it through. Sometimes it goes haywire in a way that if you haven’t encountered these kinds of cases before can take you by surprise. And it can be with the judge and that’s a little scary. Again, hence my urging to settle with a trans friendly mediator if you’ve got one of these kinds of divorces or SAPCRs and a judge who doesn’t know anyone transgender.

Holly: So what about including a name change for the transgender person as part of a divorce decree, if you are not looking at just, you know, our typical reverting to your maiden name?

Christine: I think in many situations, the negotiating of that, of like, even if the opposite sex, even if excuse me, the cisgender spouse of the trans person is super cool with it, just the back and forth between lawyers alone could be more than the fees you would charge someone to do an uncontested name change the day after the divorce. I mean, I’ll do that flat rate, you know, for not very much dollars.

And if there are feelings about the gender transition, it’s just not a good time. So it has to be a name you have used before. Legally, it’s a name you’ve used before or something. I might be getting the phrasing wrong from chapter 45 of the Family Code, which is name changes. But if you can show that like, say someone changed their email, and like socially with friends, they had used that name, you can have a pretty good argument for that, depending on the facts.

But it’s just why would you do that in a contested case, if you could do it after? It is a possible thing to do. But back and forth between lawyers and getting terms in there is not a free process. And so you may want to wait. But if your client can’t wait, and the spouse is friendly, it can legally be done.

Holly: Okay, so let’s shift gears a little bit and get to parentage. I think this is one of the most complicated areas when you’re dealing with an LGBTQ issue because we often have non-biological parents in these cases.

Christine: Right. You’re likely to have some outside person or something happening to have made that baby.

Holly: So, from my perspective, there’s really two categories of people when we’re talking about parentage in a same sex case. There are those that were married. And in that situation, it is a much easier journey to have parentage. And then there are those who were never married and never had an adoption or anything like that. And they have a more difficult path. Would you agree with that?

Christine: Yeah, I mean, if people want to fight, they can usually find something to fight about however secure it was supposedly. But yeah, so your most secure LGBTQ+ parent is someone who is either the biological parent of the child or has a court order. So it’s someone who has done an adoption or some attorneys, certain situations you’ll have an adjudication of parentage, just based on the marriage.

But an adoption is probably the safest because everybody’s heard of it. And then we have a no attacks on adoption after six months statute. So adoption, platinum. Parentage order, probably gold. But if there’s a court order from a court in Texas, saying both of these people are parents, then they are pretty darn safe from attack. I’ve heard arguments made, but they usually don’t get very far.

It is the rare exception where an argument to an adoption order or a parentage order would get very far. So that’s the most secure category, but biological parents have it pretty good as well. So the non biological parent who is married to the biological parent, and they were married when the child was when that baby was made, has a pretty solid case under presumption of parentage statute.

So there’s a statute that I like to call the gander rule, which is, it’s 160.106. It says that the terms, the provisions of this chapter relating to the determination of paternity apply to the determination of maternity. So what’s good for the gander is good for the goose. So you can use the presumption of parentage statute along with that, and say, okay, this person is a parent, and there is actually a court case called Treto, which lays out all those arguments that myself and some other practitioners who do a lot of this had been making it.

Treto beautifully summarizes that argument. I believe that we’re married in Treto. There isn’t a presumption if people haven’t looked at that lately in the presumption statute. There is a category for unmarried people. Oh, gosh, from memory. I think they have to be married for two years, they have to be together and living with the child and holding out the child is theirs for two years. Does that sound right to you, Holly?

Holly: Yeah I think after the child, like the first two years of the child’s life.

Christine: I don’t think it has to be the first two. Well, anyway, read that statute. If you have an unmarried person trying to claim parentage, read that presumption statute carefully. The other case to be aware of, I really want to dab right now, but I’m not going to. In the interest of DAAB. And in that one, there is a statute over in the making babies through technology section of chapter 160, that says, if you are married, and you’re making a baby through ART then you are a parent of that child if the doctor paperwork.

It would be helpful if you’re listed in the doctor paperwork, probably. So and that’s not even a presumption that could theoretically be rebutted, that is just you are a parent. And that one also, there was a known donor, who in that particular case, signed a please leave me out of this document of some sort. I forget if it was a waiver of interest or what they had him sign. But um, so the sperm donor was like, please, please leave me alone.

At least one of them wanted them both to have the kid and nobody wanted him to be a parent. So the appellate court left room for even if there is not an anonymous donor sperm bank situation for the provider of sperm to be in that donor class, as opposed to that parent class. I think it can come out differently when you have someone who’s like, no, wait, I want to be a parent. That was always the agreement.

I think it’s PS, out of Fort Worth. Which just don’t tell the guy he’s going to be a dad. But write it down. If you’re using a non sperm donor, write it down. Preferably go through doctor get an order after. It’s a warning case for folks who don’t hire lawyers early to figure this stuff out. But yeah, so you can have different situations depending on if the donor want to be a parent? And what was the agreement?

Which you see in DAAB, and PS, and some of the other there’s some other fights where it came out different on standing, but a lot of it was based on like, what was the agreement. So you’ve got this other person, and the simplest, if you have friends, if you have friends who are doing this, sperm banks from everybody wants that to be donors. So nobody ever says the sperm bank donor is anything other than a donor. So if you know a volatile couple thinking they can give through sperm, encourage them away from a known donor.

I think if you have a known donor, and there is a pre birth known sperm donor agreement, and then they go through a doctor, and then after the birth they do a second parent adoption, and you sum to be a donor and rights are terminated, you know, they’ve got to, once they got a court order, it’s fine. And as long as they don’t fight inside, you know, the first year of the child’s life where they’re working on getting their legal documents it should all come out the right way.

But we’ll see. If people fight an appeal with different facts, we come out with different nuances of these situations. But yeah, if you’ve got a same sex couple, and they’ve got kids, ask how did they make the kids? When did they make the kids? Is anyone arguing that these are not children of the marriage and I would throw a line in there just like I think that normal divorce language is something like these are the children of the marriage and I would throw in and and both Jane and Joan are adjudicated to be their parents. Like a half sentence adjudication, which could help if weird things happen in the future.

Holly: So kind of along those lines, you know, under the DAAB case which is dealing with assisted reproductive technology and a married same sex couple, do you, does the non biological parent need to have an adjudication of parentage? Or are they just a parent just like anybody else who has a child and goes on down the road?

Christine: What I tell people in same sex couples is to do the adoption. Because if there is any sort of problem or dispute, I had a case where CPS got involved and they were not even giving one of the moms visits or services or a path forward. So my victory in that case was to get her treated just as bad as any dad. But I got her adjudicated as a parent, and she got once a week visits, she got a service plan.

So it’s not even just what if you die? What if you divorce? It’s also what if your kid has a weird bruise and the teacher calls CPS? So people are generally much more willing to contemplate their own deaths than their own divorce in my experience. So if you say, you could get hit by a bus, wouldn’t you want Joan to automatically be a parent, and not have to come see someone like me when she’s grieving?

So in the event of nasty divorce, death with the mean relatives trying to take the kid, or CPS or other kinds of state involvement, and same sex couples in Texas are willing to contemplate the state not being friendly to them and doing what they want. It’s safer to have this than not and not have to think about this when you’re dealing with this other situation. It’s family insurance.

It’s a tax on same sex couples of Texas that your opposite sex friends may not have to do. And I tell people, I hope in 18, 19 years, you look at each other and say, I think Christine upsold us and we didn’t need that. That means you didn’t have any disasters. You know, you may have friends who never do this and don’t have any disasters, and they say ha, ha, ha we saved on those attorneys fees. But I have occasional clients who are like, oh, my gosh, thank God, I got this.

And it’s because something bad is happening. So even though the trend in the case law is to treating both sides of the same sex couple, as a legal parent using other kinds of adjudication, there are people on the other side of those briefs writing appellate briefs to the court arguing the point, and we don’t have decades of secure statute and Supreme Court case law saying it’s all fine.

Holly: So how would you advise a same sex couple that is married, and they have a child that they’ve had together for a very long time, not an adult yet, but they never had a second parent adoption, but they were married when they had this child. They’ve been married the whole time, no trouble in paradise for them. Would you advise them to still go ahead and do a second parent adoption? And is that because of concerns about the political climate?

Christine: I think the political climate makes people who consult with you more likely to actually spend the money to hire you. When Trump was first elected, we got a lot of phone calls for adoption. I forgot to say when I said about my practice, I do simple wills. Nothing complicated with fancy trusts, but I do simple wills.

So just a lot of get your house in order, estate planning, adoption. Or a lot of people who have consulted with me once about adoption, and then been like, let’s not spend the money, saying hey, send me a contract. We’re going to do that now. So I think it makes people more likely to be like, yes, let’s get maximum family insurance, family protection. Yeah, I would say even if they are a happily married couple for a while and the kids are a little older.

I mean, what it hurts is there’s a fee to the lawyer to do it. And maybe the angst of having to like have to get background checks, and maybe a social worker is looking at your family, depending on there’s a new statute that says you don’t have to do a home study. If the judge says your background checks are enough, then you don’t have to do a home study if you’re married to each other.

However, some judges want a home study anyway. It’s a brand new statute, and we’re still figuring it out, at least in the counties where I practice, how is what judges going to do what? And do we have to have an extra court hearing? So you might have a social worker looking at your family.

So it’s not just the cost to the attorney, there’s also some cost in having to be scrutinized in this way that you I think you ought not to have to, but I would still advise it if somebody’s got a 10 year old. I mean you’re still a same sex couple in Texas. And, you know, it’s not paranoid to think that people at the legislature might be after you when they’re like passing repellant laws.

Some of the questions that I heard in the I just went and listened to oral arguments on abortion cases. I mean, it’s not paranoid to think that the conservative Republicans don’t like LGBTQ+ people and might pass some bad laws and make some bad court rulings. It’s just true.

Holly: And by the time they do it, it’s too late.

Christine: Not for everything, right. If they’re busy attacking trans teenagers and bathrooms, it’s not necessarily too late to do a second parent adoption. You know, I mean, it depends, like, it depends what the attacks are that make you concerned and what you would need to accomplish to protect your family.

I mean, if you don’t have kids just get a will and estate plan, just in case. I mean, that’s what people did pre Obergefell and pre same sex marriage. They did documents like a power of attorney and appointment of guardian for myself. There are some things you can do where you pick the person and someone can wave it around at the receptionist at the hospital. So it depends on the situation.

Holly: Well, we’re pretty much out of time. But one thing 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?

Christine: To young family lawyers. Know the judge that you would be appearing before, if the person sitting in your office had to fight. And if you don’t, if you accepted someone from a county you don’t go to a lot, maybe not before the consultation, but certainly before you even think about doing anything in court, call someone who appears before that judge a lot. There’s so much variation because of our elected judges.

Between, you know, there is part of Austin that is in Williamson County, you know, they’re like, there’s so much variation between Travis County and Livingston County. Hays County, Bastrop, just the adjoining counties where I am the it’s like different countries with different political systems. It matters a lot, it matters a lot. And even if people, even if everything is agreed and friendly, it helps to be able to tell them, if you thought, here’s what would happen.

So in order to not find yourself in that situation, maybe you should agree to a little bit more. Or maybe you can, maybe you should make a bad agreement for you. Or maybe you can hold out for a little bit more in the agreement. You need to have the litigation background. And I think the biggest disadvantage young lawyers have is they don’t know the judges as well.

And they don’t know as many lawyers in like, if I was gonna go to Bastrop, I don’t go there that much. But I know who I’d call. I at least know who I’d call to talk to folks about those judges. So make some friends through the Bar functions who don’t live down the block from you, and go to the Bar function so you can at least meet local judges, if they go to those kinds of things. Bench Bar, you know.

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

Christine: I have a website CHAlaw, c h a l a w.com. I used to blog a lot. I don’t do that much anymore. You might be able to dig up some interesting older blogs. I also have a business Facebook page where I will occasionally post big news. I’ve been, I need to get a marketing person. I’ve been lackadaisical about that lately, but those are probably the two best places for someone who doesn’t know me and wants to poke around and see some more of my thinking, or follow on Facebook.

And then I will always take a phone call for five minutes from a lawyer in Texas who is trying to help an LGBTQ+ person and finds themself in a jam. I just need to screen and make sure you’re not representing the bad bio mom first. I don’t want to conflict myself out to someone trying to say their spouse or partner was never a parent, lost the right to parent, that kind of thing.

But other than helping someone who’s trying to say their spouse or partner is not a parent, I will pretty much take anybody’s call for five minutes and point you in the right direction. If there’s somebody local who was knowledgeable, point you to that person. And, you know, at least briefly talk about the weird situation. I’m pretty good about that. I try to be.

Holly: Perfect. Well thank you so much for joining us today. For listeners, if you’ve enjoyed this podcast, please take a second and leave us a review and subscribe so you can 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.