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Child Custody and Same-sex Marriages in San Antonio

Posted on May 25, 2020 by Chris Kirker

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The birth of a child is often described as a life-altering event. For many, this pivotal moment marks a new stage in one’s life—one in which the parent’s actions can no longer be guided by his or her own desires, but must now accommodate the best interests of the child. Parenthood is a unique status with a host of new privileges and responsibilities. 

Important decisions, such as choosing the values the parents wish to impart to the child and how/where the child will be educated, can present challenging questions to even the best prepared couples. No doubt, these challenges can be aggravated when the parents cannot agree or have separated. Recognizing these difficulties, the laws of Texas have long allowed separated parents to share in the child’s upbringing. This can be achieved through joint decision-making requirements and shared custody. But until recently, only some couples received these legal parenting safeguards.

Recall the case of Allison Flood Lesh and her former wife, Kristi Lesh, two San Antonians who had legally married in Washington, D.C. in 2014. After marrying and settling in San Antonio, the newlyweds decided to start a family. Months later, Krisi Lesh was artificially inseminated and gave birth to a child. However, following the child’s birth, the couple chose to raise the child separately and initially sought a divorce. However, at that time, Texas did not recognize same-sex (LGBTQI+) marriage, let alone same-sex divorce. 

After months of refusals by Lesh, Flood Lesh initiated legal proceedings to earn shared custody of the child. Up to that time, Lesh had refused shared custody, arguing that as the child’s biological parent, only she was entitled to custody. At that time, state district courts had issued conflicting rulings on same-sex marriage. The case seemed poised for a showdown at the state’s highest court, the Texas Supreme Court. Before that happened, however, an unrelated ruling by the U.S. Supreme Court rendered the issue moot. In its groundbreaking ruling in Obergefell, the U.S. Supreme Court held that the U.S. Constitution afforded same-sex couples all the rights and privileges afforded to heterosexual couples. 

With the new Obergefell ruling as a guide, the trial court in the Lesh case determined that the couple was entitled to a standard divorce proceeding and its custody inquiry. Though hardly remarkable now, at the time, the Lesh case earned national headlines.

Kirker Davis, LLP has attorneys with experience representing clients in same-sex child-custody disputes and same-sex divorce matters. If you have questions about same-sex divorce and/or same-sex child custody matters in San Antonio, please contact us today for more information.


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