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Judge prevents state from intervening in same sex divorce case

Back off, Greg Abbott.


A San Antonio judge Wednesday denied a bid from the state of Texas to stop divorce and child-custody proceedings between a same-sex couple.

State District Judge Barbara Nellermoe also set a custody hearing for May 29 in which Kristi Lesh and Allison Flood Lesh will fight over custody of their nearly 15-month-old daughter. The two women were legally married in Washington in 2010.

Nellermoe previously had ruled that Texas’ restrictions on same-sex marriage are unconstitutional, and her latest ruling prevented the state from intervening as a party in the women’s court battle.

“It’s a huge victory,” said attorney Deanna Whitley, who with Judith K. Wemmert, represents Flood Lesh. “She knocked the state of Texas out of the lawsuit.”

The lawyers said they are hoping to quickly reunite Flood Lesh with her daughter, who she hasn’t seen since Nov. 3.

Among the arguments by Texas Attorney General Greg Abbott’s office was that Nellermoe had no jurisdiction, and that the state should be allowed into the suit because it has an interest in defending the state’s ban on gay marriage.


In the state case, Abbott’s office has also argued that Nellermoe went beyond her rights as a district judge in declaring that sections of the Texas Family Code and state constitution violated the 14th Amendment’s equal protection clause.

His office in late April obtained a temporary halt to Nellermoe’s prior decision, but Wednesday’s ruling kicks the state out of the lawsuit and allows the custody proceedings to go ahead — barring any other order from a higher court that’s also taking up similar cases, lawyers for both women said.

“As we stand here today, same-sex marriage is not recognized and those issues are on appeal,” Efron said. “What they’re trying to do is create a whole new category of standing of who can initiate a custody case. … We shouldn’t be there (in a custody hearing).”

Nellermoe’s rulings could “open up a floodgate” of gay divorce and custody battles in Bexar County and elsewhere, Efron said.

See here for the background. If this does “open up a floodgate” of such battles, it’s unfortunate for the couples that are no longer together and their children, but it’s infinitely better for them to have access to the legal process to settle disputes and divide property and determine custody and visitation for the kids. We’ll see if this order gets halted on appeals as well.

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