Christine Becker and River

Denton judge rules a same-sex parent listed on birth certificate should have visitation rights

DAVID TAFFET | Senior Staff Writer

During a divorce proceeding that included a child custody battle, the attorney for the birth mom argued her wife should be denied visitation because, “She is not the child’s father. Her status is no different than a step-parent.”

But attorney Michelle May O’Neil argued in court just how wrong those statements were.

O’Neil’s client, Christine Becker, was there when her now-estranged wife gave birth to their daughter, and Becker is listed as a parent on the birth certificate, since Texas law allows two moms on the birth certificate, rather than a mother and father only.

Becker and her estranged wife were married when the child was born, and Texas law presumes a legal spouse to be the second parent, O’Neil pointed out. All of those are different from being a step-parent.

And while we say she “argued in court,” O’Neil would say she presented the law to educate the judge, who may not have had all the current information to make a fair and legal ruling.

O’Neil’s law firm has probably handled more custody lawsuits for non-birth moms than any other legal office in Texas. Among attorneys in her office, Karri Bertrand has argued cases around the state, while attorneys Jordan Ezell and Kassie Hines are helping expand what O’Neil calls the firm’s growing sub-specialty.

O’Neil said there are still holes in Texas law when it comes to same-sex couples and their parental rights. While the U.S. Supreme Court’s Obergefell marriage equality decision in 2015 made it clear that a same-sex married couple should have all the same rights and responsibilities as an opposite-sex married couple, some areas of the law still haven’t been litigated to set precedent. That means that situations that are clear-cut, legally speaking, for opposite-sex couples can still be problematic for opposite-sex couples.

That’s why O’Neil recommends that even a second parent named on the birth certificate should complete a second-parent adoption.

While most Dallas County judges will rule fairly in a same-sex divorce case, Becker faced her wife, Heather D’Agostino-Becker, in a Denton courtroom in front of a judge with little experience with same-sex marriage.

The case, as O’Neil laid it out, began with adultery. D’Agostino-Becker — while married to Becker — had an affair with a man and became pregnant. Becker, however, remained with her wife through the pregnancy and was present for the birth. Becker noted that she cut the baby’s umbilical cord and that her name is on the birth certificate as the presumed parent.

At this point in the trial, O’Neil presented the judge with the text of Pavan vs. Smith, a case out of Arkansas in which a same-sex married couple had a child through insemination by an anonymous sperm donor. The state refused to put the non-birth mother’s name on the birth certificate.

The U.S. Supreme Court ruled in Pavan that Obergefell requires states to treat the marriages of same-sex couples the same as other couples’ marriages for all purposes under the law. If an opposite-sex couple in Arkansas had conceived through in vitro fertilization, the husband’s name would still be required to be on the birth certificate as the presumed second parent. Therefore, when a same-sex couple has a child, the spouse is also the presumed parent.

So, while the opposing counsel argued that a child can have only two parents, and that both of this child’s parents were sitting at his table in the courtroom (the biological father was sitting with D’Agostino-Becker and her lawyer in the courtoom), O’Neil argued the birth certificate agrees there are two parents, but that “They are named Heather and Christine.”

Then O’Neil went a step further: She argued the man now claiming to be the father has not submitted any DNA evidence to prove his connection to the child. In what divorce case would the person who had committed adultery with the divorcing spouse even be in the courtroom, she asked.

But David Housal, the opposing attorney, thought that it was appropriate to have the man there.

“I’m sure that Mr. Housal is going to point out that his client is now living with the gentleman that they allege is the father of the child,” O’Neil told the judge. “Whether or not he is biologically related to the child is irrelevant to today’s hearing, and we move to strike him from the lawsuit and strike his presence from this hearing.”

The hearing, O’Neil said to the judge, was to determine visitation rights for one of the parents, which had been denied with advice of counsel. In his opening statement, Housal began arguing whether Becker was fit to have visitation. O’Neil countered that this wasn’t a fitness hearing.

When Housal saw he was losing in court and that he was up against someone who knew the precedents that had been set, he agreed to begin negotiations.

Becker said in a phone interview that in the three-and-a-half years since her daughter, River, was born, the presumptive father had never pursued parental rights. He hasn’t undergone DNA testing and hasn’t paid any child support.

“Since she was born,” Becker said, “he had nothing to do with her.”

Becker noted that O’Neil wasn’t her first attorney, and when things didn’t go so well in court after the first hearing in the divorce and custody case, that first attorney recommended Becker talk to O’Neil’s firm.

Before leaving court that day at the beginning of this month, Becker was granted temporary orders for joint custody. So far, she’s spent two long weekends with her daughter who, after not seeing Becker for almost six months, “smiled the biggest smile” when she saw Becker. The child was a little hesitant through that first weekend, Becker said, but by the second weekend, she was right at home, acting as if they’d never been apart.

“If everything was ideal, this case should have been easy,” Becker said.

The wording in Texas law talks about fathers, she said, and at the first hearing, which Becker attended with her first attorney, D’Agostino-Becker’s attorney was able to confuse the court.

But, Becker said, she is impressed with the judge, who was striving to make a proper ruling within the confines of the law and legal precedent.

“I’m so appreciative of Michelle and her team,” Becker added, “because all I care about is I have my daughter back.”