Normally, it is big corporate America that hires the Wallace Jeffersons, Harriet O’Neills, Deborah Hankinsons and Chad Baruchs to do batter over billion-dollar, bet-the-company disputes. But these prominent, highly expensive appellate experts are currently involved in a child custody case with big public policy stakes.
Jefferson, a former Texas Supreme Court chief justice, and the two former justices O’Neill and Hankinson represent the mother and Baruch represents the father in a long-running custody dispute that was argued at the high court last month. Baruch says his fees are being approved by a bankruptcy court. Jefferson declined to comment on whether his legal team is working pro bono.
The appeal centers around Andrew Greenhut’s suit to overturn his 2015 voluntary agreement to relinquish parental rights to his infant daughter, known in court records as D.S. and who is now age 5. Greenhut argued that the Texas divorce court lacked jurisdiction because the child’s home was in Massachusetts when the mother started divorce and termination proceedings in Texas.
Greenhut, who is not a lawyer, says he agreed to relinquish his parental rights and to an “exceptionally one-sided” property division after being misled by his lawyer wife Gita Srivastava during the couple’s 2015 divorce in Collin County.
Srivastava, a former big firm lawyer, says the termination agreement is not subject to a jurisdictional attack. The trial court that heard Greenhut’s bill of review challenging the termination order ruled there was sufficient evidence to establish jurisdiction in Texas because the father’s parental rights termination was voluntary.
In 2018 the Dallas-based 5th Court of Appeals reversed the trial court, holding that the termination order was void because the court that heard the custody case did not have jurisdiction over D.S. under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
During oral arguments, Jefferson urged the Supreme Court justices to focus on a separate Family Code provision that requires a litigant challenging a voluntary termination to demonstrate fraud, coercion or duress. The trial court that heard Greenhut’s bill of review found no such evidence, Jefferson said.
Baruch argued that Srivastava failed to tell the judge at the termination hearing the full facts about where D.S. had been living since her birth in January 2015. According to the court of appeals decision, the infant lived in the couple’s Massachusetts home during Srivastava’s maternity leave. After she returned to work in Dallas, D.S. began living in both states.
“There is a critical lack of information being provided to the trial judge here to make a jurisdictional determination by the very person who is now standing in front of this court saying that the jurisdictional determination should be immune for time immemorial,” said Baruch.
“This is a Harvard-educated lawyer at one of the largest law firms in the world. Surely, she at least had some inkling there might be a question (about jurisdiction),” said Baruch, managing shareholder at Johnston Tobey Baruch.
The mother is supported by Texas Attorney General Ken Paxton, who in an amicus letter emphasized the need for finality in child custody cases. Justice Debra Lehrmann expressed concerns about allowing final custody cases to be reopened.
“If we don’t get this right, these cases are going to be open for decades to come,” said Jefferson. “A parent who has given up their child and thinks better of it five years later can come back into that child’s life. That just cannot be.”
Baruch said that while Greenhut was not without fault, he was back in a courtroom within six months seeking review of the order after realizing that he should not have trusted Srivastava to prepare all the documents for the termination and divorce.
He said the court could fashion a narrow, fact-based decision to address concerns about parents being able to come in later and challenge third-party adoptions.
Jefferson, a name partner in Alexander DuBose Jefferson, said Greenhut did not request the court reporter’s record from the termination hearing and that his failure to do so has consequences. “The court could decide on that alone,” he said.
Baruch noted that Srivastava did not challenge the bill of review court’s finding that Texas did not have jurisdiction over D.S. under the UCCJEA at the time the divorce proceeding was filed. Rather, she argued that Greenhut could not bring a collateral attack on the termination order on any ground other than fraud, duress or coercion in the execution of his affidavit.
Watch the arguments in In the Interest of D.S. here.