While same-sex marriage has been legal throughout the country for a year, some states are still working out what that means for the rights of gay parents who divorce. This is unchartered territory in states where same-sex marriage wasn't legal until last year's Supreme Court decision.
A ruling by a Tennessee judge last week exemplifies the heart-wrenching consequences faced by some gay people who still aren't recognized as parents under state law, even if they have co-parented a child since birth. The case involves two women who were married in 2014 in Washington, D.C., where same-sex marriage was already legal.
They moved to Knoxville, where one of them gave birth to a girl via artificial insemination. Because Tennessee didn't recognize same-sex marriage then, the woman's wife couldn't be listed as a parent on the birth certificate.
Earlier this year, the child's birth mother filed for divorce. Her wife has been fighting for parental rights to the little girl that the two women, according to her attorney, committed to raising together.
The only state law on the books that addresses the rights of the non-birth parent where the child was the product of artificial insemination refers to husbands. The birth mother's attorney argued that the terminology of husband and wife "is not interchangeable," while her wife's attorney countered that it's now outdated given the Supreme Court's ruling on marriage.
The judge ruled that because the woman has "no biological relationship with this child, [she] has no contractual relationship with this child." However, he didn't rule out granting her visitation rights. However, she would have no legal decision-making capacity in the child's medical care, education or other matters.
Case May Move to Appellate Court
Acknowledging that this case was a first in Tennessee, the judge said, "I believe as a trial court I am ... to apply precedent and the law." Though the judge added that the appellate courts may address the case.
Because the historic Supreme Court ruling on same-sex marriage was limited in its scope, divorcing parents can be at the mercy of their children's biological or legal parent. Attorneys with experience in same-sex family law can help these parents fight for their rights and for what is in the best interests of their children.
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