Berwick v. Wagner (Tex. Ct. App. Sept. 11, 2014), involves Jerry Berwick, Richard Wagner, and their son (or is he?) C.B.W. Berwick and Wagner were two gay men, who were involved with each other from 1994 to 2008. In 1997, they began living together in Houston. In 2003, they got married in Canada. In 2005, they registered as domestic partners in California. And,

In 2005, they entered into a gestational surrogacy agreement with a married woman in California for her to carry a child for them. She was implanted with embryos formed from Berwick’s sperm and donated ova, which resulted in pregnancy and the birth of a son, C.B.W. A California court entered an order entitled “Judgment of Paternity” before C.B.W.’s birth, (1) declaring both Berwick and Wagner each to be a “legal parent” of C.B.W., (2) declaring the surrogate and her husband to not be C.B.W.’s legal parents, (3) ordering the hospital to list Berwick in the space provided for father on the original birth certificate, and (4) ordering the hospital to list Wagner in the space provided for mother on the original birth certificate. After C.B.W.’s birth, Berwick and Wagner brought him to Houston, where they lived together as a family for several years.

But then, in 2008, Berwick broke up with Wagner, concluded that homosexuality was sinful, and started dating (in January 2009) and married (in November 2009) a woman (Shellie) who became his wife. This led to a child custody dispute; Wagner sought an order naming him and Berwick “joint managing conservators” (i.e., giving them joint legal custody), and Berwick responded by asking to be sole managing conservator. Berwick also argued “that Wagner lacked standing as a parent to seek custody because only Berwick, but not Wagner, was biologically related to C.B.W. through use of Berwick’s sperm to conceive C.B.W.” And this led to a jury trial, because in Texas (alone among all states, to my knowledge) there is a right to trial by jury in child custody cases.

The jury, however, gave Wagner (the still gay father) custody, though with visitation for Berwick. Some interesting holdings from the appeal:

1. Texas law gives effect to California judgments of paternity, under the Full Faith and Credit Clause.

2. Even though courts have recognized an exception to the Full Faith and Credit Clause when an out-of-state judgment violates the state’s public policy, this doesn’t apply here:

Berwick contends that we should consider the California judgment void because, he asserts, under Texas law, (1) “[a] child can have only one legal father,” and (2) surrogacy agreements are unenforceable unless the intended parents are married persons of opposite gender. Berwick cites no authority for deeming a foreign paternity judgment to be so repugnant to Texas policy to render it void and subject to collateral attack. And Berwick’s arguments ignore the strong state public policies favoring stability and finality in matters of parentage evidenced by numerous statutes. [Citations omitted.-EV]
[Footnote: These policies favoring stability and finality in parent-child relationships have been recognized by Texas courts rejecting arguments similar to Berwick’s in the same-sex adoption context. Cf. Goodson v. Castellanos, 214 S.W.3d 741, 745 (Tex. App.-Austin 2007, pet. denied) (rejecting biological mother’s argument that judgment creating parent-child relationship between her child and biological mother’s ex-girlfriend was void as against Texas public policy and citing the strong policies favoring stability and finality in matters of parentage); Hobbs v. Van Stavern, 249 S.W.3d 1, 2 & 4 n.4 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (citing same policy considerations in rejecting biological mother’s untimely collateral attack on same-sex adoption by ex-girlfriend while applying statute rendering adoption judgment unassailable after six months); see also in RE S.D.S.-C, No. 04-08-00593-CV, 2009 WL 702777, at *2 (Tex. App.-San Antonio March 18, 2009, pet. denied) (mem. op.) (rejecting, as untimely, collateral challenge to same-sex adoption brought four years after judgment entered).]

3. Berwick was rightly precluded from arguing to the jury that his being the biological father should count in favor of his custody claim:

Nothing under Texas law supports Berwick[‘s] argument for applying a presumption in favor of a biological “parent” over a parent acquiring “parent” status through other legal channels (be it adoption, presumption, or assisted reproduction). Although Berwick’s brief treats these concepts interchangeably throughout, under the plain language of the Texas Family Code, only the difference between a parent and a non-parent has legal significance in determining who should be appointed sole or joint managing conservator of a child, e.g., TEX. FAM. CODE § 153.131(a); the difference between a biological parent and a non-biological parent does not. Berwick cites no authority otherwise.

4. The trial court didn’t abuse its discretion when it struck five jurors who said they so strongly opposed homosexuality that they couldn’t be impartial in the case. This didn’t constitute impermissible discrimination based on the jurors’ religion, but rather permissible exclusion of jurors based on their “unequivocally indicat[ing] that they held such strong convictions that they could not base their decisions on the law and evidence.”

5. There was sufficient evidence to support the jury’s findings that Berwick and Wagner shouldn’t have joint custody, and that Wagner should have sole custody, subject to visitation by Berwick (paragraph break added):

According to Berwick, “in naming Wagner the sole managing conservator the jury ignored the overwhelming weight of the evidence, which fails to support their conclusion.” Berwick points to the opinion of the two psychologists who testified at trial, Anderson and Laval, that the parties should be appointed joint managing conservators. Berwick cites trial evidence and these expert’s opinions about both Wagner’s and Berwick’s sincere commitment to parenting C.B.W. Berwick highlights the reasons that Laval cited as tipping the scale in favor of Berwick’s being permitted to establish C.B.W.’s residence, such as Shellie’s ability to stay home to care for C.B.W., and the loving ways in which Berwick and Shellie interact with C.B.W.
The focus of Berwick’s analysis and evidence he discusses, however, does not go to the factors relevant to determination of sole versus joint managing conservatorship. All of the witnesses agreed that both Berwick and Wagner love C.B.W. and are good parents.
But whether appointment of one parent as sole managing conservator is in a child’s best interest turns not on the parent’s ability to parent individually, but instead on several statutory factors related to the parents’ ability to effectively co-parent. These include whether the parents can encourage and accept a positive parent-child relationship with the other parent, whether the parties can prioritize the child’s welfare, and whether the parents can reach shared decisions in the child’s best interest.
Although Berwick and Shellie testified at trial that they accept Wagner as a parent and are willing and able to co-parent with him, they also both admitted this attitude was new. Berwick testified that he had decided to accept Wagner as C.B.W.’s parent during the course of the actual trial; Shellie testified that she changed her mind about Wagner’s role in the “last couple of months” before trial.
Faced with this testimony on the one hand, and evidence about Berwick’s unwillingness to recognize Wagner as a parent entitled to participate in joint decision-making for much of the four years leading up to the trial on the other hand, the jury could have resolved this point against Berwick. There is factually sufficient evidence to support the jury’s finding that appointing Wagner as sole managing conservator is in C.B.W.’s best interest.