A same-sex couple married in Washington, D.C., and wanting a divorce in Texas was told by a state district judge that Texas’ view on same-sex marriages, which includes divorce, is unconstitutional.
Allison Lesh and Kristi Lesh were married in Washington, D.C., in 2010 and then moved to Texas. Soon after, Kristi was artificially inseminated and became pregnant and a year later the couple split up and a custody battle ensued.
Allison, who was not the biological mother, was prevented from any type of visitation because of Texas laws banning same-sex marriage.
"If the same-sex marriage ban is upheld, she has no legal rights to this child whatsoever here in Texas, but if she was to go back to Washington, D.C., those rights exists," said attorney Judy Wemmert, who represents Allison. "How can you be a parent in Washington, D.C., where gay marriage is allowed, but then you come to Texas and oops! You’re no longer a parent.”
San Antonio District Judge Barbara Nellermoe ruled the ban on same-sex marriage that is preventing Allison from any type of custody is unconstitutional.
Attorney General Greg Abbott requested the case be sent to state’s 4th Appellate Court and requested a stay of Nellermoe’s decision.
“And the 4th Court did grant that temporary stay at 12:30 p.m. on, so we are now in a holding pattern until the 4th Court rules whether Judge Nellermoe has the authority to declare those parts of the Texas Constitution unconstitutional,” Wemmert said.
In February a federal district judge in San Antonio ruled the same provision was unconstitutional for same-sex marriages in Texas. A three-judge panel on the 5th Circuit Court then overturned the ruling but attorneys are appealing for a decision from the full 5th Circuit.