SAN ANTONIO (AP) — A Texas judge has rejected a push by state officials to block a same-sex couple’s divorce and child-custody case from proceeding.
State District judge Barbara Nellermoe set a May 29 custody hearing in San Antonio for the fight between Kristi Lesh and Allison Flood Lesh over custody of their nearly 15-month-old daughter.
Nellermoe’s ruling Wednesday left Flood Lesh’s attorneys jubilant.
“It’s a huge victory. She knocked the state of Texas out of the lawsuit,” attorney Deanna Whitley told the San Antonio Express-News.
The couple wed in Washington, D.C., in 2010 and three years later, Lesh gave birth to their daughter, who was conceived through artificial insemination. Lesh’s attorney, Barry Efron, has argued that since Flood Lesh is not a biological or adoptive parent, his client should have sole custody.
“She’s upset because she doesn’t want to get into this custody situation,” he said of Lesh.
However, Whitley and co-counsel Judith Wemmert are trying to reunite Flood Lesh with her daughter, whom she hasn’t seen since Nov. 3.
“I’m just excited because it’s getting closer for me to see her. I can’t put my smile away,” said Flood Lesh.
Texas Attorney General Greg Abbott’s office argued that there could be no divorce because the state constitution bans same-sex marriage. State attorneys say Texas has an interest in defending that ban and sought to intervene in the case.
However, Nellermoe has ruled previously that the ban violates the U.S. Constitution. On Wednesday, she denied all of the state’s requests.
Attorneys for the state vowed to appeal. A federal judge’s ruling in February that Texas was illegally discriminating against same-sex couples by denying them the right to marriage is pending on appeal to the 5th U.S. Circuit Court of Appeals.
“As we stand here today, same-sex marriage is not recognized and those issues are on appeal,” Efron said. “We shouldn’t be there,” he said of the custody dispute.
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