The birth of a child is a life-changing event. For many, this pivotal moment marks a new stage in one’s life—one in which the parent’s actions are no longer guided by his or her own desires but, rather, are now driven by the best interests of the child. Parentage is a unique status with a host of new privileges and responsibilities.

The challenges of parenthood can be easily aggravated when parents fail to agree on important decisions or have separated. Recognizing these difficulties, Texas law has long allowed separated parents to share in the making of important decisions which impact the child, such as where to live or how the child should be educated.

For one Texas couple, however, the challenges of parenthood were compounded by the state of the law. The case of Allison Flood Lesh and her former wife, Kristi Lesh, gained national attention when their divorce (and ensuing custody battle) pushed Texas law into uncharted territory. The contest eventually reached the Texas Supreme Court. Despite both parties being poised to fight the case until the end, an unrelated action by another court spelled an abrupt, anticlimactic end to the case. Continue reading for our brief synopsis on the case and its unexpected resolution.

Case Background

Allison Flood Lesh and her former wife, Kristi Lesh were two Texans who had legally married in Washington, D.C. in 2014. After marrying and settling in San Antonio, the couple decided to start a family. Krisi Lesh was artificially inseminated and gave birth to a child. However, following the child’s birth, the couple sought a divorce and chose to raise the child separately.

However, at that time, Texas did not recognize same-sex marriage, let alone same-sex divorce. After months of refusals by Lesh, Flood Lesh initiated legal proceedings to earn shared custody of the child. The case presented an issue of first impression. In other words, this was the first time a child born to a married same-sex couple had initiated a custody battle in divorce proceedings.

The Parties’ Arguments

Flood Lesh put forth a simple argument: The child had been born during the time the couple was legally married and, therefore, Flood Lesh was entitled to the same custodial rights as any other parent.

Lesh’s argument employed a bit more nuance. Though the couple had legally married in Washington, D.C., she argued, Lesh was the child’s lone biological parent. Therefore, only she was entitled to custody. This argument won the support of the Texas Attorney General—the state government’s top lawyer. Lesh sought many of the legal protections that accompany marriage (such as those found in divorce proceedings) without any of the responsibilities of marriage (like joint custody of children).

An Unexpected Development

With the parties’ positions staked out, the case seemed poised for a showdown at the state’s highest court. But before that happened, an unrelated ruling by the U.S. Supreme Court rendered the issue moot. In its groundbreaking ruling in Obergefell, the U.S. Supreme Court held that the U.S. Constitution afforded same-sex couples all of the rights and privileges afforded to heterosexual couples.

With Obergefell ruling as a guide, the Texas trial court determined that the couple was entitled to a standard divorce proceeding and it’s custody inquiry.


With the benefit of hindsight, it now seems unremarkable that Flood Lesh would prevail in her fight for custody rights of the couple’s child. But the outcomes of many pivotal cases seem obvious after the fact. Whether the issue touches on the freedom of speech, medical access, or the rights of the accused, the law tends to develop through slow, incremental changes. Watershed cases, such as the Obergefell case, are the exception to the norm. Texas, and all other states, now recognize and protect the rights of all married couples, same-sex or otherwise.

Kirker Davis, LLP was an early advocate for same-sex issues and has represented clients in same-sex matters for many years. If you have questions about same-sex matters, please contact us today for more information.