In August, we shared the heart breaking story of Erica Witt, a Tennessee woman who had been legally married to another woman, but her parenting rights were denied by a Knox County judge because she did not share any biological ties with the child that she and her former spouse had raised together. In that post, we discussed how Tennessee’s now-antiquated child custody laws use language that assumes all parents are heterosexual couples, leaving same-sex spouses with no parental rights simply because they have no biological ties with the child.

Change may be on the horizon across the country, though. The New York State Court of Appeals expanded that state’s definition of who can be considered to be a child’s parent. Now the law recognizes the rights of non-biological, non-adoptive parents to custody and visitation in the event of separation or divorce.

The ruling springs from a case described in a New York Times article in which two women, Elizabeth and Brooke, lived together and had a child together. Elizabeth was artificially inseminated and gave birth to the couple’s son, who took Brook’s last name, and the two raised the boy together until their relationship ended in 2010. Elizabeth tried to keep Brooke from being able to spend time with their son. Brooke filed a petition for custody and visitation with the boy, but the court denied her petition because she had no biological or adoptive ties to the boy, which had been a requirement of the law. That requirement was overturned by the high court’s most recent ruling. The New York State Court of Appeals recognized that the makeup of family relationships in this country is changing, and that the law needs to evolve in order to be more consistent with those changes.

Hopefully, the Tennessee courts will follow the lead of states like Massachusetts, Maryland, Oklahoma, South Carolina, Washington, Louisiana, Kentucky, and now New York, which allow non-biological parents and non-adoptive parents who have invested time, love and care in the raising of a child to be allowed to continue to parent that child after the marriage or relationship ends. Until the law changes, however, it is imperative that the non-biological spouse adopt his or her child legally. You may be able to make your case citing T. C. A. § 36-6-303, the statute that allows stepparents to seek visitation with the children, but adoption is really your best bet.

American families are changing. If you have raised a child with whom you share a bond of love and caring, but not genetics, you may face a difficult battle to remain in your child’s life should you and your spouse divorce. You are welcome to have a conversation with a Nashville divorce attorney who has helped many Tennessee families create and revise a workable custody and visitation plan that has supported their needs. Please call 615-391-4200 or use our contact form to reserve your consultation with the compassionate legal team at Miller Upshaw Family Law, PLLC.