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Woman denied rights as parent in same sex divorce

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March 28, 2024

A divorced woman cannot make parental decisions about her former wife’s daughter, a judge has ruled.

The couple married in Washington DC in 2014 before buying a home in Knoxville, the third largest city in Tennessee. Shortly afterwards, they decided to have a child through artificial insemination.

Their daughter was born in January 2015 but because the southern state did not legally recognise gay marriage at that time, only the biological mother was named on the child’s birth certificate. Since then, the United States Supreme Court has declared same sex marriage legal in all 50 states.

The couple’s marriage eventually broke down and in February of this year the mother filed for divorce. During the subsequent proceedings, her lawyer cited a state law which was first enacted in 1977. This addresses who can be named a parent in cases involving artificial insemination and clearly states that such rights are only applicable to husbands. The mother’s lawyer argued that the “terminology is not interchangeable” and cannot apply in same sex marriages.

Laws which declare that “marriage may only consist of a ‘husband’ and a ‘wife’ [have] been held to be unconstitutional”, the partner’s lawyer insisted, imploring the court to “interpret the statute in a manner that makes it constitutional”.

Circuit Court Judge Greg McMillan decided to read the law exactly as it was written. He declared that the mother’s former partner had “no biological relationship with this child [and] no contractual relationship with this child”. It was not his place to “plow new ground, but to apply precedent and the law”, he added. As a result, the woman has no ‘parental rights’ – she can have no say in the child’s life on matters like education and medical treatment. She also has no obligation pay any kind of child support.

However, the judge also suggested that the case could proceed to an appeals court “given the novelty of this issue”.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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