First, while I do NOT practice law in Texas, when I do family law, Divorce Agreements are something worked out by BOTH SIDES. The Judge does NOT add things UNLESS one side ASKS for it, and either the other sides AGREE, or after a hearing the Judge agrees that the term should be added.
Thus WHY was the “morality clause” in the Divorce papers? The Judge did NOT put it in there on his own, someone asked for it (or it was mandated by State Law, which is something the Judge has no control over, but if that was the case I suspect it would have been mentioned in the Article).
A further complication is that it appears this clause was agreed to (or NOT appealed from) when the divorce was final and thus any time for an appeal on the article is long past. I suspect the Father filed papers to enforce the Divorce agreement and the Judge was thus restricted by the terms of that agreement, which included the “morality clause”. It does NOT appear that the Mother filed anything to modify the Divorce Agreement and thus the only thing in front of the Judge was enforcement of the Divorce Agreement. I do NOT see any court on appeal reversing a Judge's order to enforce such an Agreement/Order.
On the other hand, the Mother could file a motion to open the Divorce Settlement and ask for the clause to be removed OR that it does NOT cover her present lesbian relationship. If the Judge rejects that motion, then she has a new grounds to file an appeal on the grounds the clause was NOT agreed to and it was unreasonable for the Judge NOT to permit such a modification ( I wrote this before I found out Custody may be a JURY issue in Texas, see below for more details).
Now, the Judge MAY have ruled on both motions at the same time, rejecting the request for a modification (and thus giving Mother the option of filing an appeal) while enforcing the existing order by giving Mother 30 days to comply with the terms of the Divorce Agreement. That the Judge gave her 30 days to comply, implies to me, he is giving her time to file an appeal, In cases where the law is clear, most orders tend to be "do it today".
Now, I read the report from The Dallas Voice, it gives more information, including that the Judge did NOT find the Mother in Contempt, but will issue an order, ordering the mother move out her lover. When someone violates a Court Order, they are generally held in Contempt, Contempts are almost always upheld on appeal. By issuing a new order, the Judge is giving Mother the option of filing an appeal, for the new order is new and thus the time for appeal has not yet run.
http://www.dallasvoice.com/judge-lesbian-moms-partner-10147997.html
While the Dallas Voice says such “morality clause” are common in the rural counties of Texas, that sounds more like someone's opinion then actual fact (and may reflect that one side demands such a clause and the other side does not object).
My point is this appears to be a judge who has decided to kick this case upstairs rather then handle the issue at law himself. Are such clauses constitutional? given that both sides agreed to them at one time (and it was when both were represented by attorneys and it excludes ANYONE not just homosexuals from staying past 9:00 pm)? I do NOT think this case will go to the US Supreme Court, given the issue that the term had been agreed to by both sides and applied not only to Homosexuals by Heterosexuals who were NOT married to one of the parents (and may have been aimed at Heterosexual relationships not Homosexual relationships when agreed to). The US Supreme Court will leave this up to the Texas courts.
On the other hand are such clauses constitutional? Do such clauses interfere with how the children are to be raised? Do they prevent "Great Harm" to the children? Remember we are NOT talking about the Mother and her lover, but her children. The key is NOT the relationship between the two women, but how does that affect the Children AND how does that affect the relationship between the Children and their father AND how the father wants them to be raised?
On appeal, if I was representing her, I would avoid the issue of the sex of her lover and concentrate on how this clause would affect her children, even if she had a male lover. Such relationships are more common AND they may be good case law saying how to a
A quick trip to Lexis indicates that Custody is a JURY issue in Texas, thus the Judge may NOT be able to make a modification of an existing Custody and Visitation order. HE has to schedule a JURY trial as to Custody, but does NOT have to do so to enforce a Divorce agreement (And it may NOT be legal for the Judge to schedule a Jury trial, since the time for one was in 2010 when the Divorce agreement was entered into). This is one of the reason you should deal with attorneys who practice in whatever state any legal action is occurring, they know that state's idiosyncratic laws.
Thus the Judge may be caught in the bind, he may NOT be able to modify the Custody order without granting A jury Trial, but no such request for a modification or Jury trial has been made. On the other hand, enforcement of the existing Divorce order is in front of him and it is proper for him to rule on it. i.e. he can NOT modify the Divorce Order, he can only enforce it.
As I said above, there is something more involved then Mother being a Lesbian, Given the reports that Custody is a Jury issue, modifying the Custody and Visitation Order may be possible at the present time, but its enforcement is.
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