Berwick v. Wagner

Jerry Berwick (defendant) and Richard Wagner (plaintiff) were married in Canada. Berwick and Wagner registered their domestic partnership in California despite living in Houston. In California, Berwick and Wagner entered into a gestational surrogacy agreement with a married woman, whereby Berwick was to donate his sperm for the surrogacy. The surrogacy was successful, and a California court entered an order declaring both Berwick and Wagner to be the child’s legal parents. After the couple ended their relationship, Wagner filed a suit in a Texas court seeking an order naming himself and Berwick as joint managing conservators of the child. Berwick counterclaimed, seeking to be named sole managing conservator on the basis that Wagner lacked standing as a parent to seek custody. Wagner relied on the California order and, in a separate proceeding, sought to register the California judgment as a foreign judgment under the Texas Family Code, which provided for recognition of child-custody and paternity judgments from other states. Berwick contested the registration, and the cases were consolidated. Berwick argued that the California judgment could not be enforced in Texas, because doing so would be against the public policy of the state and Wagner did not meet the definition of a parent in Texas. The trial court concluded that recognition of the California judgment was proper. An appeal followed in which all legal issues were affirmed, including a determination that the California judgment was a final judgment on the merits. A jury trial followed and resulted in Wagner being appointed the sole managing conservator and Berwick the possessory conservator. Berwick appealed.