Kimberly Kantor, second from left, and Lorie Burch, center, with their children, from left, Kaia, Poppy Jean (in Burch’s arms) and Carlie, holding Adlee Louise
Especially in Texas, being a biological parent might not be enough to guarantee legal standing. That’s where adoption comes in
TAMMYE NASH | Managing Editor
When Lorie Burch and Kimberly Kantor first became a couple — they were married in 2017 — Kantor already had two daughters from a previous same-sex marriage — Carlie, now 17, and Kaia, now 12. But after a while, they decided they were ready to add to their family. Kantor was the one who would carry the pregnancy and give birth, but Burch wanted to have a genetic tie to the new children, too. So they chose to go through a process called reciprocal IVF.
Burch explained, “ I had my eggs frozen. They were then fertilized with donor sperm [through the same California cryobank and from the same donor as the two older girls] and then we ended up with two healthy embryos. Rather than having the embryos transferred to me, they were transferred to Kimberly.”
That happened first in 2018, and Adlee Louise was born on March 22, 2019. Then the couple’s fourth daughter Poppy Jean was born three years later on May 27, 2022.
And yet, even though they are her biological children, noted Burch, Texas does not recognize her as the two girls’ legal parent, putting her in the position of having to adopt her own biological children.
“The specific issue of why I am adopting Adlee and Poppy is arguably more a sex discrimination issue [than an LGBTQ issue] because I am a woman, and I did not give birth to them,” Burch explained. “The Texas Family Code is very specific on what defines a mother. It’s not about gender-neutral terms. If I were a man, then there would be no issues since Adlee and Poppy are biologically mine.”
Although Burch is an attorney herself, “my practice is really focused on wills, trusts, guardianship, and estate planning,” she said.
So she and Kantor turned to attorney Jaime Duggan, who specializes in adoption, to create the legal foundation of their family.
In cases like this one, Duggan said, “The issue is related to how the law identifies a legal parent. Every state its their own laws — ours is in the Texas Family Code — that lays out the ways you can become a child’s legal parent. Our Texas Family Code uses gendered terms, and therefore defines a parent using the terms ‘mother’ and ‘father.’ Other states might use ‘parent,’ which could make becoming a legal parent less cumbersome for LGBTQ folks than it is in Texas.”
In Texas, Duggan said, there are just three ways a person can legally become a mother: give birth to the child (as Kantor did), adopt a child or have a court order signed by a judge. But not one of those has anything to do with being biologically related to the child or with the marital status of the mother.
“Also, a very important note that many folks don’t realize, none of those three ways has to do with being listed on the child’s birth certificate as a parent/mother,” Duggan said. “Being on a child’s birth certificate — which Texas allows same-sex couples to do at the child’s birth IF they are married — does NOT, in and of itself, make someone a legal parent.”
In Kantor and Burch’s situation, Kantor is Adlee and Poppy’s legal mother, even though she has no biological connection, and Burch — despite being named as a parent on the birth certificate and being their biological mother — had no legal standing as their parent.
Thus, the need for Burch to adopt her own biological daughters.
Duggan noted that the third way she mentioned — having a court order signed by a judge in a process called “adjudication of parentage” — was only recently adding to the Texas Family Code, and “in my opinion as a Texas family law attorney, should still raise some significant concerns for LGBTQ parents and their decision-making process.
Adjudication of parentage “requires a judge to interpret the Texas Family Code, Texas case law and U.S. Supreme Court case law to determine the person is a legal mother,” Duggan explained. And while she has been able to “win” some adjudication of parentage cases, “because of the newness of this law, there is not a lot for a judge to consider or scenarios to follow, so it may end up being a case-by-case situation, determined judge-by-judge for quite some time.
“And, the reality for some parents will be that they may end up ‘losing’ in front of a judge at the initial court level and then have to appeal the case to a higher court, which often takes years. That has potential of the parent losing precious time with the child while the case works its way through the court system.”
Duggan said that her law firm “strongly recommends” going through the adoption process rather than relying on adjudication of parentage “because an adoption is generally a universal way to identify a parent from state to state, and adoption is also a process identified in other areas of Texas law, like in the probate code or in personal injury claims. Extremely significant rights are associated with being a legal parent and adoption is the best and surest way in Texas right now for someone in Lorie’s position to become a legal parent to her daughters.”
Duggan said that if it were to come down to a court battle, Burch’s status as the two girls’ biological parent, in and of itself, would afford her no legal standing. And, she stressed, even if it did, just having standing to file for custody does not automatically mean a person would win.
“Monumental preferences are given in the law to legal parents over non-legal parents,” Duggan said. “In circumstances where the couple has raised the child together before splitting, there are often other ways they can obtain standing — besides biology. But that doesn’t automatically mean they will win or be successful.”
And while it is difficult, given the variety of factors to consider, to give one single, definitive answer to the questions surrounding what would happen if the legal parent and bio parent were to split, or if something were to happen to the legal mom, “it is absolutely possible, and the law allows for the possibility that the bio mom could be in a situation to have to fight for custody against birth mom’s relatives or — given the way other things have been going in Texas — against the state through the Department of Family and Child Services.
Duggan also notes that, while this kind of situation where a bio parent is adopting their own child is most often seen with lesbian couples, “it is certainly possible for there to be other situations where it would be necessary … particularly for trans parents.”
While legally “there is no such thing as a second-parent adoption [because] under the law it’s just an adoption,” members of the LGBTQ community and attorneys who are in the community or who work regularly with clients in the community usually refer to these kinds of adoptions as “second-parent adoptions,” Duggan said, adding that her firm would refer to the process as a second-parent adoption whether there were biological ties between the child and the adopting parent or not.
“Good family law attorneys who are in and who respect the LGBTQ community also understand how demeaning and demoralizing the need for the process can be, and they use the term ‘second-parent adoption’ as a show of respect,” Duggan said.
“Well-versed attorneys also have specific processes within their law firms to handle the cases with the courts in ways that can make the adoption process easier and sometimes faster.”
Time is always definitely a factor, Duggan acknowledged, and there are “a number of variables” that can affect how long it takes for an adoption to be completed. “And the one we can’t change is the speed of the court,” she said.
“Since it’s still a court process, we can sometimes be delayed in the way a specific court is handling their cases in general, not just adoption cases,” she explained. “There are also things well-versed family law attorneys can do and advise their clients to do to help speed up the process in some cases. I would say it ranges from about four to eight months — sometimes longer.”
Cost is another consideration, and Duggan said that can also depend on a number of factors, including which firm you hire and the cost of the adoption evaluation, which is required. “In general, I would expect the entire process — including court fees, attorney fees and evaluation fees — to be somewhere around $5,000-$7,000,” she said.
But what if something happens in the meantime? That, Burch said, is where other legal steps can come into play.
“Wills, trusts, guardianships and the designation of a health care agent are documents that, regardless of legal status, will ensure that the non-birth/non-legal parent can be guardian of the child, take care of the child and even take the child to the hospital and/or for doctor visits, which is especially critical in an emergency situation,” Burch said. “You never know what can happen day-to-day and if something happens to the birth/legal parent, the other parent will have no legal rights to take care of their child” if these documents are not in place.
Burch continued, “Getting your estate planning documents can be done in a matter of weeks, much quicker than an adoption, and will ensure that in the meantime, if something happens, the non-birth/non-legal parent can take care of their own children.
Therefore, we strongly recommend getting the estate planning in place first.”
While it can be a long and potentially expensive process, Burch said it is well worth it in the long run: “In a nutshell, in any instance where the state or governmental agency would recognize a parent, wouldn’t I want that for my own children?”
Non-bio, non-adoptive parents beware
In June 2022, I argued In the Interest of N.H., a Child, a case out of Harris County (Houston) to the 14th Court of Appeals, and on July 14 the court released its opinion, reversing and rendering the trial court’s award of possessory conservatorship to my client, a non-biological and non-adoptive parent of a little girl who is now 6 years old. The opinion refers to my client as “Ex-Girlfriend,” which is accurate, as the parties never married. But let’s not forget, however, that the ability to marry was pretty new, and not all same-sex couples rushed out to get married immediately.
The parties were in a dating relationship, and during that time, the biological parent became pregnant via assisted reproduction.
Non-bio mom helped select the anonymous sperm donor, attended doctor appointments and paid for much of the process.
At the time of the child’s birth, non-bio mom was present in the delivery room to cut the cord. She was given a hospital band and treated the same as any other parent. However, the court made it a point to note that non-bio mom “was not listed on the child’s birth certificate, and … never signed any sort of acknowledgment of parentage.”
Interestingly, I am unaware of a document called an “acknowledgment of parentage,” since the only document listed on Attorney General Ken Paxton’s website is an “Acknowledgment of Paternity.”
Despite the fact that the two women lived together as a family and raised the child together for the first 16 months of her life, non-bio mom did not meet the statutory requirements to apply a presumption of paternity, which the Texas Family Code says must also be applied to maternity. But the courts in Texas neither consistently nor reliably apply the paternity presumption to maternity.
In 2018, my client was awarded temporary visitation with the child. Prior to the case going to final trial in 2021, in 2020, In re C.J.C. (also our firm’s case) came down from the Texas Supreme Court, which required non-bio mom to rebut the “fit parent presumption.” The court cited to the case, stating that the “fit-parent presumption applies in any proceeding in which a non-parent seeks conservatorship or access over the objection of a parent.” (See In re C.J.C., 603 S.W.3d 804, 817 (Tex. 2020)(orig. proceeding).
Despite the fact that we had offered, on non-bio mom’s behalf, undisputed evidence at trial of bio-mom’s excessive drinking, including a DUI, depression and mixing alcohol with prescription drugs while handling the child as an infant, the court claimed there was “no evidentiary support” related to bio-mom’s unfitness. Similarly, the court found that non-bio mom had failed to show that removing her from the child’s life would cause “significant impairment” to the child.
Suffice it to say that the fit parent presumption equates to an exceedingly difficult burden for a nonparent to overcome.
The N.H. opinion finds that “a nonparent with [the ability to file a lawsuit] who has no biological or legal relationship to the child cannot obtain court-ordered possession of a child over the wishes of a fit parent” without proving significant impairment.
What does all of this mean for same-sex couples? It is not good news.
If you are not married and you have not yet adopted your child as a second parent, you must do so. If you are married and you have not yet adopted your child as a second parent, you must do so immediately.
If the bio or adoptive parent will not consent, you have the option of filing an adverse adoption. This option is newer, and the outcome is uncertain. But there is case law to support adverse adoptions under certain circumstances.
The U.S. Supreme Court’s Dobbs opinion overturning Roe v. Wade and Justice Clarence Thomas’ concurrence alluding to the high court overturning Obergefell has understandably led to widespread fear across the LGBTQ community. Members of the community must immediately and proactively seek to protect their rights and their families in every way possible. There are a variety of different ways that protection can be accomplished, and I strongly advise LGBTQ people to seek the advice of an experienced attorney familiar with LGBTQ challenges.
Karri Bertrand is an associate at O’Neil Wysocki who specializes in LGBTQ+ family law and appeals. She can be reached at email@example.com.