Texas Appeals Court Issues Adverse Ruling on Co-Parent’s Suit Seeking Conservatorship or Adoption

Arthur Leonard Lesbian/Gay Lawnotes – 9.09

The Court of Appeals of Texas in Dallas issued a
ruling Aug. 11 affirming a decision by a trial
court in Dallas County rejecting an attempt by a
lesbian co-parent to be appointed conservator
or to adopt the child born to her former partner
through donor insemination. In the Interest of
M.K.S.-V., A Child, 2009 WL 2437076. The
court rejected the plaintiff’s claim that her extensive
visitation with the child sufficed to create
standing for her to seek to be appointed a
conservator, and found that the birth mother’s
adamant refusal to consent was a bar to adoption.
The parties met in the fall of 1997, began living
together in 1998, and decided to have a
child together. T.S. was inseminated in 2003,
and gave birth to M.K.S. in May 2004. T.S. and
K.V. “co-parented” until their relationship
broke up in August 2005, when T.S. moved out
with M.K.S. However, conceding the importance
ot “continuity” for M.K.S., T.S. agreed to
a liberal visitation schedule for K.V., who continued
to play an active role with the child.
However, T.S. was upset when K.V. accessed
the child’s school records without consulting
T.S., and cut off her visitation, transfering the
child to a different school without consulting
K.V. K.V. then filed suit, seeking to be appointed
conservator or to adopt the child in a
second-parent adoption proceeding.
T.S. challenged K.V.’s standing to be appointed
a conservator, and refused to consent to
the adoption. K.V. was relying on statutory provisions
that allowed an unrelated adult who had
a substantial parental relationship to seek appointment
as a conservator, but the court found
that the arrangement she had with T.S. did not
qualify under Texas precedents to confer that
status in this case. Furthermore, the court found
that T.S.’s refusal to consent was an absolute
bar to adoption by K.V. K.V. also made estoppel
arguments, contending that she had an agreement
with T.S. concerning continued contact
with the child, but the court was unwilling to
enforce the agreement, either through a breach
of contract or estoppel theory.
K.V. is represented by Michelle May O’Neil,
and T.S. by Paul Brumley. A.S.L.
Tax Court Rejects Joint Filing Status for Same-Sex
Couple
The United States Tax Court ruled on July 13
that millionaire gay activist Charles Merrill
could not benefit from joint tax filing status for
the tax years 2004 and 2005 because he was
not married to his long-term same-sex partner,
Kevin Boyle, during those tax years. Merrill v.
Commissioner of Internal Revenue, T.C. Memo.
2009–166, 2009 WL 2015106.
According to the opinion for the court by
Judge Diane L. Kroupa, Merrill had previously
been married to Johnson & Johnson heiress
Evangeline Johnson Merrill, then began a relationship
with Boyle after Evangeline’s death.
Merrill and Boyle have been partners for more
than 18 years, and married in California in
2008.
Merrill never filed tax returns for 2004 and
2005. When the IRS contacted him about the
missing returns, he responded that he had not
filed as a protest because he should be able to
file jointly with his partner but it was not allowed
by the IRS. The tax agency prepared
forms based on whatever information it had
about Merrill’s finances and assessed him deficiencies
for the years in question. Merrill took
the issue to the Tax Court, claiming that in light
of his long-term relationship with Boyle, the denial
of joint filing status discriminates against
same-sex couples in violation of the constitution.
The Tax Court generally does not pass on
constitutional questions. In this case, Judge
Kroupa pointed out, the Code provides that in
order to benefit from joint filing status, one
must at least file a return claiming such status,
which Merrill had never done, thus his appeal
must be dismissed. “We need not address his
constitutional claims,” she wrote, but then
dropped a footnote citing half a dozen prior rulings
rejecting constitutional claims brought to
challenge the filing status provisions. Of
course, a perfectly plausible argument could be
made that it is inequitable to treat long-term
same-sex couples differently from married couples
under tax law, but turning that into a legal
claim is tricky since the two don’t have the same
legal status. However, now that Merrill and
Boyle are married, one suspects that they could
raise a constitutional claim against any refusal
to accept a joint return for their 2008 taxes,
should they attempt to file one. A.S.L.