On June 26, 2015, the United States Supreme Court decided Obergefell v. Hodges, which recognized marriage equality for same sex couples. It required all states to issue marriage licenses, and to recognize same sex marriages that were performed in other states which had already legalized it. Along with the right to marry comes the right to divorce, which you might think affords them the same rights and responsibilities as heterosexual couples, but that is not always the case. In Tennessee, a Knox County judge in June ruled that Erica Witt, a woman legally married to another woman, does not have any parenting rights with regard to the daughter that she and her former spouse had together via artificial insemination.

According to a story in the Knoxville News Sentinel, Erica Witt and Sabrina Witt were married in Washington, D.C. in April 2014, where same sex marriage was legal at the time. The couple purchased a home in Knoxville and had a child together through the use of artificial insemination from an anonymous donor. Sabrina gave birth to the baby girl in January 2015, but because same-sex marriage was not recognized in Tennessee at the time, Erica was not permitted to have her name added to the child’s birth certificate, and she never legally adopted the child. In February, Sabrina Witt filed for divorce.

Because Erica Witt has no biological relationship with the child, 4th Circuit Court Judge Greg McMillan ruled that she was not a legal parent. Erica may not have any decision making power over the child, nor does she have any financial obligation to support the child financially. Erica Witt’s attorney asked the Court to replace the words “mother and father” with “spouse and spouse” in the law when the judge was deciding the case, but instead the court stuck with the narrow ruling.

Tennessee’s child custody laws, which date back to 1977, use language that pertains to heterosexual couples. Erica Witt’s attorney plans to appeal the case all the way to the U.S. Supreme Court if necessary. A higher court must decide whether Tennessee’s custody laws can be interpreted to apply to same-sex couples, or if it must be changed legislatively.

While the state of Tennessee recognizes the couple’s right to divorce, it does not yet recognize custody rights for same-sex couples wherein a spouse has not adopted the child. The best recourse for those same-sex couples who have children by artificial insemination is for the non-biological parent to legally adopt the child once it is born in order to establish parental rights until Tennessee state laws catch up with federal law. It may be the only way for same-sex parents to avoid the heartbreak Erica Witt now faces.

If you are facing a child custody dispute in your Nashville divorce, you want a lawyer who knows how to fight for justice. We can help. Please call 615-391-4200 or use our contact form to reserve your consultation today with the dedicated Nashville divorce attorneys at Miller Upshaw Family Law, PLLC.