Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
Most people remember that the Supreme Court’s momentous decision last year in the Obergefell case made gay marriage legal across the country. Despite the important decision, issues surrounding gay marriage, such as gay divorce or gay parental rights, continue to receive intense scrutiny and are the subjects of divisive legal battles. Though the hope among many was that the Obergefell decision would lead to clarity, the ruling, while answering one question definitively, left many others remaining to be hashed out.
An example of this is a case in Knoxville, TN involving a custody dispute between two women in the midst of divorcing. The issue involves interpreting a state law about whether “husband” and “wife” should be taken literally or applied instead to same-sex marriages.
In the Knoxville case, Sabrina and Erica Witt had a child through artificial insemination and were legally married in D.C. The couple lived in Tennessee and, thanks to Obergefell, the state was forced to recognize the validity of their marriage. However, there is no similar Supreme Court case requiring recognition of both the women’s parental rights.
A judge in Knoxville ruled earlier this year that Erica has no legal parental rights under state law and thus could not be awarded visitation or other rights over her daughter. The judge based his decision on a strict reading of state law and said that Tennessee’s adoption statute does not envision or apply to a situation involving two parents of the same gender. The decision prompted an outcry from many who believe the woman, who acted as a mother to the child, was being denied a right she would otherwise be entitled to if she simply relocated to a different state where gay adoptions were legally recognized. Others praised the decision, saying that relevant statute only speaks to “husbands” of the birth mother, and was never intended to apply to a same-sex spouse of the birth mother.
Erica Witt has said she intends to appeal the ruling and a state court is currently debating whether to hear the case. The fight appears to be intensifying, as dozens of legislators have joined a conservative Christian group in attempting to intervene in the case. Fifty-three legislators, to be precise, have signed on to a motion put forward by the Family Action Council of Tennessee (“FACT”) arguing that an important legislative power will be impaired if courts are permitted to interpret the state law more broadly, thus allowing same-sex spouses to assert parental rights.
The legislators and FACT argue that family law matters have historically been determined by states. If the courts reinterpret Tennessee’s law more broadly, based on the Supreme Court decision in Obergefell, they argue that federal judges will have usurped the rightful power of state lawmakers. In unrelated cases, FACT has filed suit to invalidated two same-sex marriages performed in Tennessee. So far a judge has dismissed one suit, pointing out that FACT has no legal standing to bring such a case. The other case remains pending.
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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