Now that gay couples are free to both marry and divorce in Tennessee, there will likely be many couples who were married in other states years ago who are ready to go their separate ways. The new marriage equality ruling allows them the freedom to seek a divorce in their home state where they have already established residency. When the couple has children, they may face some unique challenges when it comes to determining child custody in Tennessee.

Protecting children from the conflict of divorce

When a couple who has children chooses to get a divorce, they must first understand what a lasting impact that decision will have in the lives of their children. Taking steps to ensure that your child is shielded from as much of the conflict as possible, and taking the time to listen to their fears and concerns about the future, are just two things that parents can do to try to shield their child from the emotional trauma that can be the result of a contentious divorce. When the conflict is centered on the child and who will get custody, it can be even more confusing and upsetting for everyone.

If the spouses can lay aside their differences for a while and focus on what is best for the child, and come to a mutual agreement amongst themselves, then they should not have to worry about being at the mercy of the judge’s decision about custody.

Child custody fundamentals in Tennessee

The term “custody” is slowly being phased out of family law vernacular. The current legal terms include “primary residential parent” and “alternate residential parent.” The PRP is the parent with whom the child spends the majority of time. The parent who has had the primary responsibility for caring for the child during the marriage is the parent who is likely to be named the primary residential parent. Of course, these decisions are made by the court with the best interests of the child in mind.

The parents can develop a permanent parenting plan for the child which will include all of the information about the child’s life including education, health, religious training, extracurricular activities, social activities, visitation schedules, holiday and vacation schedules and any other details particular to the child’s life.

Potential difficulties for same-sex couples in child custody disputes

One of the potential challenges that gay couples might face with regards to deciding who gets custody of the children stems from the fact that in many circumstances, only one of the partners will actually share DNA with the child, unless the child is adopted and neither of the spouses is related to the child by blood. In the case where only one parent has a biological connection with the child, the other parent should simply adopt the child. However, if the other parent has not legally adopted the child prior to the divorce, there is a possibility that he or she may have no true right to that child. It is possible that a parent who has raised a son or daughter from birth could be treated like a step-parent, and face an uphill battle for custody or visitation rights.

All of this is still very new, and the law takes time to catch up with the way people actually live. Over time as the laws change and as judges come to understand the dynamics involved in same-sex parenting sentiments and laws will change.

If you are a parent who is in a same-sex marriage and you are thinking about divorce, please call the Nashville family law team at Miller Upshaw Family Law, PLLC today and schedule an in-person or video consultation. We are here to answer your questions and offer our sound legal guidance.