Board Certified Family Law Specialist Matt Arnold answers the question: “What are my custody rights if the other parent moves?”
Though it’s gone smoothly in some places, other courts in more conservative states have had a bumpy road adapting to changed legal realities since the landmark same-sex marriage case decided by the Supreme Court in 2015. A good example of this is in Tennessee, where one same-sex couple has spent months and months fighting to get a divorce, something that has proven harder than many expected.
The couple, Erica and Sabrina Witt, were married back in 2014 in D.C., a time when gay marriage was illegal in Tennessee. The two decided to have a child and Sabrina got pregnant with the help of artificial insemination. When the child was born, Erica was not listed on the birth certificate because of her gender and the fact that, in Tennessee, the laws did not recognize the rights of a lesbian to adopt the child born to the other partner.
Though the Supreme Court decision in June of 2015 changed things by creating a legal right to gay marriage across the country, the Witts were already experiencing marital trouble and had not remedied the issue involving Erica’s parental rights to their shared child. When the two filed for divorce, Erica asked to receive the rights of a father (which is how Tennessee law refers to the parent who did not give birth). Unfortunately, Erica lost the first round of the dispute, with the judge saying that a strict reading of state law prevented her from receiving the rights and responsibilities that would typically be granted to a man in her situation.
Thankfully, Erica didn’t give up. Her lawyer filed a petition arguing that the state’s laws were unconstitutional in that they failed to recognize the rights of a lesbian couple in direct contradiction to the recent Supreme Court ruling. Legislators in Tennessee leaped into action and tried to get out ahead of the case, first by trying to intervene in the legal dispute between the Witts and, when that failed, by passing a law addressing the issue. The measure, signed into force within weeks of the latest ruling, says that Tennessee’s laws as they relate to families, custody and divorce, must be read strictly and words given their natural meaning. The measure is designed to force judges to interpret the state’s laws that discuss “mothers” and “fathers” and “husbands” and “wives” strictly, not on a gender-neutral basis. The intent, obviously, is to deny same-sex couples the rights afforded to opposite-sex couples.
Despite the legislative intervention, the Tennessee Attorney General issued an opinion saying that judges should ignore the measure and continue interpreting state laws in accordance with the recent Supreme Court ruling. That’s exactly what happened with the Witts, as the judge decided that words “wife” and “husband” should be viewed in a gender-neutral fashion. To choose to do otherwise, as the legislature tried to demand, would run contrary to Constitutional protections given to same-sex couples.
The practical impact of the decision is an important one. For the first time in Tennessee, a judge has said that a lesbian should be treated as a “husband” before the law. That means that Erica Witt will be deemed the legal father of her daughter and win the right to see her daughter post-divorce. Unsurprisingly, it also means that Erica will be forced to pay child support. After all, with rights come certain unavoidable obligations, an obligation Erica is likely more than willing to take on.
If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.
About the Author
Matthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.
Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.
A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.
In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.
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