I was made aware of the case of Sabrina Renae Witt vs. Erica Christine Witt recently.  This is a situation involving a same-sex marriage between two women, one of whom gave birth to a child via artificial insemination.   The couple planned to raise the child together as parents.  But (as happens) things changed, they’re getting divorced, and one of our state courts has found itself limited by our antiquated statutes.  The Court held that since our state statutes only refer to a “husband” in the section regarding parentage of a child born via artificial insemination, the wife of a woman who had such a birth had no parental rights over this child.

Broken heartThis is a case where two women got married in Washington D.C., then came to reside in Tennessee.  Prior to the U.S. Supreme Court decision Obergefell v. Hodges, Tennessee law limited marriage to one man and one woman.  Obergefell effectively made that Tennessee law void and unenforceable, and same sex marriages became legal in our state.  The argument presented in this case is that Obergefell had the effect of making all Tennessee statutes regarding married spouses gender-neutral, and the Court should therefore determine a parenting schedule without regard to the fact that both parents are the same sex.

Seems simple, right?  Well…. not so fast.

Old laws aren’t fair anymore

Unfortunately, our state legislature is going to have to put some work into our statutes regarding marriage.  At one time I tried to count the number of statutes that grant some sort of privilege, right, or benefit to married couples that unmarried people might not have.  There were so many that I got frustrated and gave up on it.  Many of them are gender-specific and refer to “husband” or “wife” as if there would only be one of each in a marriage.  Which made sense, at the time.  The world has changed, however.

For example, T.C.A. 36-2-304 says “A man is rebuttably presumed to be the father of a child if:  The man and the child’s mother are married or have been married to each other and the child is born during the marriage…”   Based on that statute, had the above couple been an old-school one man/one woman marriage, the husband would have automatically been assumed to be the father and would have parental rights to the child.  Here again, the law makes no provision for a woman who is married to a woman who gave birth to a child.

Another example lies in the statutes that talk about who can file or defend a lawsuit.  T.C.A. 20-1-104 says that “Where a husband has deserted his family, the wife may prosecute or defend, in the husband’s name, any action that the husband might have prosecuted or defended”.  This means, for example, that if a man is sued for some reason and he reacts by running and hiding from a potential judgment, the abandoned wife can defend against the lawsuit in his place, in hopes of keeping the plaintiff from taking marital assets.  Probably a good law.  What if the marriage is two men?  Can the abandoned husband take up the defense of the lawsuit?  Not if the law is read strictly.

Another example lies in the use of the word “custody”.  Courts really want us to stop using the word “custody” because people talk about “winning custody” as if they’ve won some sort of trophy they can show off to their friends, which is a horrible attitude when you’re talking about raising children.  So now we talk about the “primary” parent and the “alternate” parent.  Even so, the word “custody” is still all over our statutes and will be until the language can be cleaned up.

What needs to happen next

I agree that what has happened in the case of Sabrina and Erica Witt isn’t fair.  It sucks that this is happening to them, and this poor child is caught up in the middle of it.  However, the judge did what was required of him, I think.  Judges at the trial court level are supposed to follow the law as it’s written, whether they like it or not.

68948_law_series_4It will take a long time for our (or any) state legislature to pass laws that repair all of the gender specific language in our statutes.  It will be a huge task just to identify all of the statutes that contain language that can cause disastrous effects like has happened in the above case.  Then we’ll have to deal with the unintended consequences of the rewrites.

For now, in this case, the judge opened the door to an appeal.  An Appellate Court can decide that the relevant statutes should be interpreted in a gender-neutral way, which would set a president that other courts could follow.  Hopefully that’s what will happen, and the decision will come before too many more families get caught in this situation.

In addition, this situation could have been remedied had the couple done an adoption to firmly establish the parental rights of both women.  An adoption takes a little money and time, but it would have required a lot less money and time than they have already spent litigating the parentage of this child.

Got a divorce, custody, or other family law matter and need some help?   Contact me and let’s talk about how we can fix your problem.