A lesbian couple in Texas may be denied the opportunity to divorce after an appeals court refused to support a judge’s decision to rule against a state law. Kristi Lesh and Allison Flood Lesh married four years ago in Washington, D.C. Despite a county judge’s ruling that Texas law should not be able to prevent them from receiving a divorce decree, a series of legal complications have halted the process and may prevent the couple from being granted a divorce.
Due to the state’s ban on gay marriage, Texas laws are not equipped to deal with issues of child custody in lesbian divorces. In February 2013, Lesh gave birth to a child conceived via artificial insemination, and the couple filed their marriage certificate in Bexar County around that same time.
However, after separating last summer, Flood Lesh filed for divorce with joint custody in February 2014. Lesh requested Judge Barbara Nellermoe of Bexar County to deny Flood Lesh’s custody claim, reasoning that Flood Lesh is neither the biological nor adoptive parent of the child.
On April 22, Judge Nellermoe chose to allow the custody claims to move forward along with the divorce. Nellermoe’s ruling stated that the same-sex marriage ban in Texas is unconstitutional as it denies equal protection of rights, that the women were legally married in D.C., and are both parents to the child.
Nellermoe’s ruling and the divorce would have gone forward if not for the intervention of Texas Attorney General, Greg Abbot. On April 23, Abbot requested a stay from the 4th District Court of Appeals in San Antonio, citing “the risk of imminent harm from the trial court’s unnecessarily broad order.” A panel of judges granted the stay on April 24, placing the divorce proceedings on hold so that Abbott’s office can review Nellermoe’s findings.
“A failure in Texas to afford the same presumption of parenthood to the wife of a child’s birth mother as it does to a husband of the birth mother violates the Equal Protection Clause,” said Nellermore in response. She further stated that Texas is developing a “suspect classification of children” that are not provided the equal protection rights they deserve.