Texas Court OK's Lesbian Divorce

On Wednesday a judge in Austin Texas gave final approval to a divorce decree sought by a lesbian couple who had married in Massachusetts in 2004.

State District Judge Scott Jenkins declined to consider Texas Attorney General Greg Abbott’s request to intervene in the divorce case, Austin American Statesman reports. Attorneys from Abbott’s office had argued that a Texas judge cannot legally grant a divorce to a gay or lesbian couple because state law defines marriage as between a man and a woman.

After they were married, Angelique Naylor, 39, and Sabina Daly, 42, returned to their home in Austin and adopted a son, who is now 4.

The couple separated last year and Naylor filed for divorce in December. Naylor continues to live in Austin, while Daly moved to San Antonio with their son.

The divorce petition, which Daly originally opposed, landed in Jenkins’ court. Throughout the case he has been focusing on finding a solution that would be in the best interest of Naylor’s and Daly’s child. During a hearing in February, Jenkins urged the two parents to think of their child, according to lawyers for each of them. After two days of discussion with Jenkins, Naylor and Daly agreed to share custody of their son and agreed on how to divide their property.

The American Statesman reports on his final order:

Jenkins noted in granting a final divorce decree to the couple that family law cases involving children are the hardest he considers. He said he always conjures a mental image of the child involved when hearing them and had done so with Daly and Naylor’s son. He recited the boy’s birthday from memory.

Jenkins said that even when the children are not told about the litigation, “there is potential for collateral damage” to the children involved.

“I feel that children feel stress and pick it up in the very air they breathe,” he said.

He said children are what “we are supposed to be concerned about as lawyers and as judges.”

Then, speaking about the attorney general’s office, he said: “The wise and merciful thing to do in this case is to simply leave these parties alone.”

In a separate case, involving a divorce granted to a gay male couple in Dallas, an appeals court is considering arguments from Abbot that divorces cannot be granted to gay or lesbian couples. Jenkins ruled that that case could supply legal precedent without the need to delay finality for the Daly/Naylor family.