Now that Tennessee (as well as the rest of the United States) recognizes same-sex marriage as legal, thus affording LGBT couples the same rights and protections under the law, the family court system has seen a drastic rise in the amount of cases involving same-sex divorce. Under the law, a same-sex couple’s divorce is treated exactly like that of a traditional couple. But what happens in cases where the couple has children together?

The problem

If two LGBT individuals co-adopt a child, then both of their names would be on the adoption paperwork, making them both legally responsible for the child’s upbringing. However, some couples choose to have children through alternate means, and this is where the problems arise. Unless both parents are listed on the birth certificate – and until very recently, that was not possible nor legal for same-sex couples in Tennessee – then technically, the parent left off of the certificate may not have any legal rights to his or her child.

How could this happen?

If two men decide to raise a child together, and they decide to use a surrogate, then only one man has a biological tie to the child. His partner would not be listed on the birth certificate, because it would have the name of the biological mother. Likewise, if two women decide to grow their family though IVF, only one of those women would have any biological claim to the child who was born.

Fixing the problem

Even if the courts want to recognize both parents as parents, divorce attorneys for the biological parent could take advantage of the “loophole,” so to speak, and argue that only their clients should have access to the children. To avoid this potential disaster, it behooves non-biological parents to undergo the process of adopting their own children. This can help avoid a potentially contentious issue later on.

You and your spouse can go through the mediation process with your attorneys and a third-person mediator, and create a Marital Dissolution Agreement, or MDA, and a Parenting Plan. A Parenting Plan will outline how both parents plan to co-parent the children, whether or not they will share joint decision making and how parenting time will be divided. Because judges will generally honor a Parenting Plan as long as it is in the best interest of the children, you can end up with a legally binding document that claims you have a right to be with your kids.

We can only hope that common sense will prevail in same-sex divorce cases involving children, but our years of experience have taught us that it is better to be prepared. If you and your partner as seeking a divorce, but you are unsure what the legal ramifications may be for your right to be with your children, please contact the Nashville law office of Miller Upshaw Family Law, PLLC. We walk you through the divorce process, and offer support and guidance for moving forward.