Lesbian partner can sue for visitation rights.

The ever-changing concept of family may gain a new dimension in Tess after a state appeals court ruled that a lesbian mother's estranged partner may go to court seeking visitation rights with the mother's five-year-old child.

A three judge panel in Austin ruled that Lisa Ann Fowler had standing to sue her former partner, Tonia Jones, for the right to visit Jones's child. Jones conceived the child through sperm donation while the two women were involved in a relationship. (Fowler v. Jones, No. 03-96-00331-CV, 1997 WL 365473 (Text App. July 3, 1997).

Although the court did not address the question of whether Fowler can be considered a parent under Texas law, the ruling appeared to lay the groundwork for consideration of that issue in future custody disputes between same-sex couples.

Jones and Fowler ended their relationship in 1994, when the child was two years old. When Fowler sued for visitation rights the following year, Jones argued that her former lover had no legal or biological link to the child.

Jones also cited the Texas family code, which confers standing only if the person seeking visitation "had actual care, control, and possession of the child for not less than six months preceding the filing of the petition." She argued that Fowler did not have standing because she had not cared for the child since the couple's breakup more than six months earlier. A trial judge agreed and threw out Fowler's case.

The appeals panel reinstated the suit, holding that the state legislature's elimination of a pivotal word from the statute made the difference. An earlier version of the law required the period of care to be "immediately preceding" the filing of suit. Legislators deleted the word "immediately" when they amended the statute in 1995.

The court concluded that this charge indicated lawmakers' intention to confer standing on any party who had "care, control, and possession" of a child for any six-month period.

"We decline to reinsert a word into a statute after the legislature has removed it," Chief Justice Jimmy Carroll wrote.

The court stressed it was not judging the merits of Fowler's visitation claim but was merely allowing it to continue in the lower court. Jones's lawyer has asked the appeals court to rehear the case en bane.

In a related development, a Virginia appeals court overturned a judge's order barring a lesbian from visiting her partner's five-year-old son, now in the custody of his grandmother. The court said the judge had focused too heavily on the couple's sexual orientation and failed to consider other relevant factors in crafting the visitation decree. (Bottoms u. Bottoms, No. 2157-96-2, 1997 WL 421218 (Va. Ct. App. July 29, 1997).)

The ruling was a rare victory for Sharon Bottoms and her lover, April Wade, who lost custody of Bottoms's son in 1993 when a judge ruled Bottoms an unfit mother because she is a lesbian. The judge awarded custody to Bottoms's mother, Kay.

Sharon Bottoms dropped the custody fight after the Virginia Supreme Court upheld the lower court ruling, but she and Wade challenged the visitation order. Kay Bottoms's attorney said he would go back to the state high court to appeal the visitation decision. (Va. Couff Reverses Ruling in Case of Lesbian Mother, Wash. Post, July 30, 1997, at B7.)