Last year I wrote a post about Sabrina and Erica Witt (link removed), who were two women involved in a same-sex divorce in Knoxville.  The problem with their case was one of the two had given birth to a child via artificial insemination, and since the Tennessee statutes only recognize the rights of a “father” of a child born during a marriage, the other wife was losing any right or opportunity to raise the child the two women had been parenting together.

It was a horrible injustice and fundamentally unfair, but at the time the court was finding itself bound by the antiquated language in our state law.  Now, Judge Greg McMillan has done an about-face and has used a very broad interpretation of our parentage statutes to resolve this case and grant parenting rights to both women.

Same sex marriage and conflicts of laws

The real issue in cases like this (as I posted before) is Tennessee, like many states, have older statutes that were written when a marriage of “one man, one woman” was the accepted norm.  The statute in the Witt case is this one:

68-3-306.  Birth from artificial insemination.

 A child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.

The language doesn’t anticipate that two women could be married and become the parents of a child.  In 1977 when this law was written, it just wasn’t a possibility.  More recently, the U.S. Supreme Court has issued Obergefell v. Hodges, which tells us that any law that restricts marriage to “one man, one woman” is unconstitutional.  This decision means same-sex marriage is now the law of the land, but does that also mean that any statute that makes reference to opposite-sex marriage is also unconstitutional?  Should a wife of a woman who bears a child also have parental rights, just as a husband would?

Our Tennessee Attorney General thinks so.  With regard to the above statute, the AG wrote:

The legislature’s use of the words ‘husband’ and ‘wife’ merely reflects the fact that only opposite-sex marriages were recognized in Tennessee when the statute was enacted in 1977. After Obergefell, of course, that is no longer the case. In order to preserve the constitutionality of Tenn. Code Ann. 68-3-306, therefore, it must now be construed to read: ‘A child born to a married woman as a result of artificial insemination, with consent of the married woman’s spouse, is deemed to be the legitimate child of the two spouses.’

And that’s exactly what Judge McMillan did.  The Judge accepted the recommendation of the Attorney General and issued his ruling just before the Tennessee “natural and ordinary meaning” bill was signed into law.  By ignoring the gender-specific language in the statute, the Judge ruled that both women are parents of the child and both have the right to parenting time and to pay child support.

Onward to the appeals!

There will, of course, be an appeal.  And possibly an appeal after that.  This battle has been raging for a year and if Sabrina Witt (the biological mother) was inclined to allow Erica Witt to spend any time with the child at all, this case would have settled long ago.  I have little doubt that both parties will be raising constitutional arguments.  This is likely to continue to be a very important case for same-sex couples in Tennessee.

Even if the Appellate Court doesn’t wrestle with the constitutional questions, the parenting time analysis might be interesting.  Time will tell.

Contact us for help

It’s interesting to watch the law struggle to catch up with the changes to societal norms.  If you are involved in any kind of divorce, custody, or child support case (same sex, opposing sex, or just not enough sex), contact us to find out how we can help you resolve your case.  Even if your case isn’t news-worth, we know it’s still a big life event for you and we’ll work hard to get you the results you need.