Same-sex marriage in Tennessee became legal in 2015, after the U.S. Supreme Court ruling in Obergefell v. Hodges. Although same-sex couples in Tennessee have not historically enjoyed protection, as a result of the favorable ruling, more and more LGBTQ couples are opting to have children. (An estimated 18% of the same-sex couple population of Tennessee has children under the age of 18.) If those couples wish to divorce, however, they have faced serious hurdles when it comes to parenting time and support.

In May of this year, a Knoxville court reversed a previous Tennessee same-sex child custody decision in the state’s first ever same-sex divorce. Erica and Sabrina Witt were legally married in Washington, D.C., in April of 2014.  Soon after, they purchased a house in Knoxville, and elected to have a child through artificial insemination from an anonymous donor. In January 2015, Sabrina Witt gave birth to a daughter. At that time, Tennessee did not recognize the legality of same-sex marriage, and Sabrina’s wife, Erica Witt, was not listed as a parent on their child’s birth certificate.

Because of this, a lower Court denied Erica Witt the rights that traditional couples would have; namely, because she could not be listed on the birth certificate, she could not have custody or parenting time with their daughter.

Reversing a previous decision regarding the language of “wife” and “husband” in Tennessee law, Judge McMillan has ruled Erica Witt the legal “father” of their minor child, functionally stripping away gender from the labels of husband and father. The judge ruled that Erica Witt has legal rights to see her daughter, and has to pay child support.

Because this is the first same-sex divorce in Tennessee and, as such, the first one involving children, this case will likely set a precedent for future same-sex divorces in the state. Although the Tennessee legislature is attempting involvement with bills including provisions for “natural language,” the courts have pushed back. McMillan specifically has warned the legislature to stay out of the Witt’s business.

If you have children and are filing for a divorce, it is in your best interest to undergo a legal adoption and craft a document laying out your parental rights. It is well within your rights to have parenting time with your children after a Tennessee divorce. If you are the non-biological parent of your children, you will likely want to pursue legal adoption options in order to protect your parental rights.

Due to the lack of precedent, resolving child custody issues may be difficult for same-sex couples in Tennessee. Years of family law experience helping clients in the Nashville area means that our attorneys at Miller Upshaw Family Law, PLLC are well-equipped to help you reach a resolution and promote the best interests of your child. Located on Woodland Street in historic Edgefield, our Nashville office is within sight of the courthouse with free parking. Call us today at 615-391-4200 or contact us online to reserve an in-person or video consultation with an experienced Nashville divorce attorney.